Delhi District Court
State vs . Arvind Johri & Ors. on 18 October, 2022
IN THE COURT OF SPECIAL JUDGE (PC ACT) CBI17,
ROUSE AVENUE DISTRICT COURTS, NEW DELHI
State vs. Arvind Johri & Ors.
CNR No. : DLCT/110001832019
I.D. No. : 64/2019
C.C. No. : 06/12
FIR No. : RC3 (E)/2004/EOWI
Branch : CBI/EOWI/New Delhi
U/ss : Sec. 120B r/w Sections 419, 420, 467,
468, 471 IPC and Section 13(1) (d) r/w
Section 13 (2) of the Prevention of
Corruption Act, 1988.
Date of institution : 20.07.2007
Decision reserved on : 09.09.2022
Date of decision : 18.10.2022
In the matter of :
State
(through/Investigated by Central Bureau
of Investigation, New Delhi)
CC No. 06/12 & ID No. 64/19 Page 1 of 402
State vs. Arvind Johri. & Ors Judgment dt.18.10.2022
Versus
A1 Arvind Johri S/o Sh. M. P. Johri
R/o C16, Gujarwalan Aptt,
Vikaspuri, New Delhi.
(since dead, proceedings abated on 14.10.2011)
A2 Mahan Mukherjee S/o late Sh. M.L. Mukherjee
R/o 52/4, Chitranjan Park, New Delhi.
Permanent address15/B, Desapriya, Park Road,
Kolkata26.
A3 Rajendra S Raikwar S/o Sh. Vijay Singh,
R/o Alaknanda, C3, Fourth Floor,
16A, Nepean Sea Road, Mumbai.
A4 Raja Ram Sharma @ Devgan S/o Sh. Jai Ram Sharma
(Since Approver/PW7)
R/o O24, Chankaya Place, PartII, Janakpuri, New Delhi.
A5 Anil Kumar Mahajan @ A.K. Mahajan S/o Sh. C. L. Mahajan,
R/o 6K, CPWD Colony, Vasant Vihar, New Delhi.
Also at A23, Ground Floor, Jai Bharat Enclave,
Bhagwati Garden, Dwarka Mod, New Delhi110059.
(Since died on 16.11.2020, proceedings abated on
01.02.2021)
A6 Margrate Anthony W/o Sh. Anthony Joseph,
R/o A1/152, Gafoor Nagar, Okhla New Delhi,
(since died on 14082012, proceedings abated on
10.09.2012).
CC No. 06/12 & ID No. 64/19 Page 2 of 402
State vs. Arvind Johri. & Ors Judgment dt.18.10.2022
A7 Seema Nagpal W/o Sh. V.K. Nagpal,
R/o N154, Greater Kailash PartI, New Delhi.
(Since died on 30.11.2014, proceedings abated on
19.1.2015).
A8 K.B. Relan S/o Sh. R. K. Relan,
the then Branch Manager,
Punjab National Bank,
New Rohtak Road Branch, New Delhi.
R/o 640 Himgiri Apartments Vikaspuri, New Delhi.
A9 R.L Jain S/o Sh. S C Jain,
the then Officer, Punjab National Bank,
New Rohtak Road Branch, New Delhi.
R/o SU191, Pitampura, Delhi18
(since died on 13.10.07, proceedings abated on 21.5.2008).
A10 Anil Aggarwal S/o late Sh. S.P. Agarwal,
the then Sr. Manager (Credit), Punjab National Bank,
Regional Office, Rajendra Bhawan, New Delhi.
R/o 49, Trilok Apartments, I.P. Extension,
Patparganj, Delhi110092.
A11 Surender Kapoor S/o late Sh. Manohar Lal Kapoor,
R/o 209, Gagan Vihar, Opp. Preet Vihar, New Delhi.
Also at 47B, Hans Vihar, Apartments, Sector13,
Rohini, Delhi85.
(since died on 27.04.2021, proceedings abated on 26.08.2021).
A12 M/s Gaaman Global Exports
Through its partner, Mahan Mukherjee.
(Discharged vide order dated 14.05.2013)
CC No. 06/12 & ID No. 64/19 Page 3 of 402
State vs. Arvind Johri. & Ors Judgment dt.18.10.2022
JUDGMENT
1. It is voluminous record in all forms of facts, documentary record (multiple documents in multiple folders), expert opinion vis a vis those facts and documents are scattered at various places. In order to apprehend the case of parties, it requires introduction of gist of cases of the parties so that while proceeding, the names of the parties, reference of relevant or disputed facts at a glance will keep informed for clarity.
2. The case of the State through CBI is that a formal FIR was registered on 08.03.2004 for allegations that during the year 20012003, there was criminal conspiracy between A1 Arvind Johri, CEO of M/s Gaaman Global Exports, a partnership firm, its partners, namely, Mahan Mukherjee and Rajendra S. Raikwar and others on the one side and officer/ official / public servants of Punjab National Bank, New Rohtak Road Branch (in short "PNB, NRB"), New Delhi on the other side and pursuant to such conspiracy they cheated PNB, NRB since various credit facilities were obtained and extended fraudulently on the basis of forged documents to the extent of Rs.3.15 crores approximately. The account of the said firm turned into NPA on 29.02.2004 with outstanding amount of Rs.340.65 lakhs. The allegations are against firm CC No. 06/12 & ID No. 64/19 Page 4 of 402 State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 A12 M/s Gaaman Global Exports who had opened an account with the PNB, NRB, its partners A2 Mahan Mukherjee and A3 Rajendra S Raikwar, one Mr. Arvind Johri (A1 since dead, died on 23.09.2011) was appointed CEO in the said firm, one Raja Ram Sharma (nickname Devgun, A4 since Approver/ PW7) was an employee/computer operator in the said firm. The credit facility was obtained from time to time from PNB, NRB and A8 K.B. Relan was Branch Manager in PNB, NRB and A9 R.L. Jain (an officer) (since dead, died on 13.10.2007) in the said PNB, NRB, A10 Anil Aggarwal was Senior Manager (Credit) in the Regional Office of PNB. The loan facility was availed by furnishing title documents and securities/guarantees of Smt. Ram Rakhi and Smt. Shanti Devi, they were impersonated by accused Seema Nagpal/A7 (She is also dead, died on 30.11.2014) and guarantee of Ms. Stella A. Biswas, she was also impersonated by accused A6 Margrate Anthony (she is also dead, died on 14.08.2012). There was also another security/guarantee of Anil Kumar Jaggi and he was impersonated by accused Surender Kapoor/A11. The documents for all such formalities etc. were arranged by Anil Mahajan/A5 (since dead, died on 16.11.2020). Arvind Johri (A1) had also applied for loan in the name of M/s Gaaman Global Exports vis a vis many bank accounts were got opened in the name of firms through employee Raja Ram Sharma for which CC No. 06/12 & ID No. 64/19 Page 5 of 402 State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 liaison work was done by Arvind Johri. The amount from the account of M/s Gaaman Global Exports were also transferred to those accounts opened through Raja Ram Sharma and siphoned off.
3. On the other side, Raja Ram Sharma @ Approver came forward as a state witness. However, accused Mahan Mukherjee is taking the plea of innocence that in fact he is victim at the hands of A1 Arvind Johri and Raja Ram Sharma; Rajendra S. Raikwar also took the plea that he is a victim and at the material time when documents were executed or loan was obtained, the firm was under the losses and he signed the papers under bonafide belief since the things were being looked after by Mahan Mukherjee and Arvind Johri. Other accused K.B. Relan and Anil Aggarwal have come up with the plea that they followed bank practice, circular and guidelines; they took all their sincere efforts; warranting from the situation and they have followed the established procedure inclusive of verification of title documents, verification of property vis a vis reports from approved valuer were also obtained. Accused Anil Aggarwal has also taken a stand that while dispensing the function in the regional office, he had followed the said principle and banking practice. Similarly, accused Surender Kapoor has also expressed his innocence and ignorance with regard to allegations vis a vis his photographs have been used by CC No. 06/12 & ID No. 64/19 Page 6 of 402 State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 Sh. Surender Khosla. Mahan Mukherjee and Surender Kapoor also led defence evidence to establish their plea and defence.
4. With this broad but little introduction of the parties and about their case, now the case as set up is being taken. Some of the relevant documents will also be referred/introduced alongwith facts. There are many documents in different files (like original or copy), many of them are assigned different numbers and some of single document was assigned more than one exhibit numbers, an endevour is being made to refer them together in respect of relevant/ disputed documents.
INTRODUCTION/MATRIX OF THE PROSECUTION CASE AS PER CHARGESHEET
5. The chargesheet was filed on 20.07.2007 against A1 Arvind Johri, A2 Mahan Mukherjee, A3 Rajendra S. Raikwar, A4 Rajaram Sharma (since Approver), A5 Anil Kumar Mahajan, A6 Margrate Anthony, A7 Seema Nagpal, A8 K.B. Relan, A9 R.L. Jain, A10 Anil Aggarwal, A11 Surender Kapoor and A12 M/s Gaaman Global Exports, a partnership firm on the allegation to have committed offences punishable under Section 120B read with section 419, 420, 467, 468 & 471 IPC and Section 13 (1) (2) read with Section CC No. 06/12 & ID No. 64/19 Page 7 of 402 State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 13 (1) (d) of the Prevention of Corruption Act (in short "PC Act"), 1988. The chargesheet narrates generally the allegations, however, the facts are scattered, therefore, allegations are being stated in chronological way in the following paragraph : 5.1. In August 2001, A2 Mahan Mukherjee & A3 Rajendra S. Raikwar, partners of M/s Gaaman Global Exports opened an account No. 5023 in PNB, NRB. At that time, A8 K.B. Relan was the Branch Manager and he in conspiracy with other accused persons introduced the said account of M/s Gaaman Global Exports.
5.2. A2 Mahan Mukherjee & A3 Rajendra S. Raikwar in conspiracy with A8 K.B. Relan and other accused persons submitted a loan application dated 09.08.2001 for a Cash Credit Facility of Rs. 20 lakhs to enhance the finance availability of finance for business of export of Basmati Rice, principally to the Kingdom of Saudi Arabia. Besides other documents, they offered a security of hypothecation of stocks of rice and a collateral security of property No. 208, Old Gupta Colony, Vijay Nagar, Delhi, registered in the name of Smt. Ram Rakhi. This proposal was processed by Sh. R.P. Bansal, the then Manager (Advances) vide his note dated 06.09.2001 and A8 K.B. Relan, the CC No. 06/12 & ID No. 64/19 Page 8 of 402 State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 then Branch Incharge sanctioned the said limit of Rs. 20 lakhs on 07.09.2001 against security of stock in trade and equitable mortgage of said property No. 208, Old Gupta Colony, Vijay Nagar, Delhi. A2 Mahan Mukherjee and A3 Rajendra S. Raikwar in conspiracy of other accused persons submitted fake/forged Sale Deed dated 01.09.1964 of Property No. 208, Old Gupta Colony, Vijay Nagar, Delhi in the bank against the credit facility sanctioned to M/s Gaaman Global Exports. It was also disclosed that Smt. Ram Rakhi had already expired in the year 1990. A2 Mahan Mukherjee & A3 Rajendra S. Raikwar in criminal conspiracy with A8 K.B. Relan and other accused persons produced a lady in the bank on 07.09.2001 who impersonated as Ram Rakhi and executed the loan documents. A8 K.B. Relan in conspiracy with other accused persons did not obtain any identity proof from the lady who impersonated as "Ram Rakhi".
5.3. A1 Arvind Johri, CEO, M/s Gaaman Global Exports submitted another loan proposal vide letter dated 12.12.2001 to PNB, NRB pursuant to conspiracy with other accused persons inclusive of A8 K.B. Relan for enhancement of cash credit limit of Rs.20 lakhs to Rs.100 lakhs, Book Debt limit of Rs. 15 lakhs and Non Fund Based limit of Rs. 50 lakhs. A8 K.B. Relan CC No. 06/12 & ID No. 64/19 Page 9 of 402 State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 processed/recommended the said proposal and submitted the same to Senior Regional Manager. At Regional Office, the said loan proposal was processed by A10 Anil Kumar Aggarwal and Sh. Vinay Kapoor and the Branch Manager was directed to submit a report in respect of Property No. N154, Greater Kailash, PartI, New Delhi. A8 K.B. Relan, the then Branch Manager submitted his report dated 23.01.2002 regarding said property that there was personal verification of the said property. A8 K.B. Relan also sent letter dated 31.01.2002 and submitted the documents to the Regional Office. A8 K.B. Relan wrote in the said letter that he met Smt. Ram Rakhi and Smt. Shanti Devi, both of them had full confidence in Rajendra S. Raikwar and they understand implication of equitable mortgage of the properties owned by them; whereas it was a false and bogus report, since Ram Rakhi was dead and Smt. Shanti Devi was mentally retarded lady vis a vis none of them or their family members knew Rajendra S. Raikwar. Sh. S.K. Marwah, the then Regional Manager, PNB sanctioned the facility of Cash Credit (H) limit for Rs. 65 lakhs, CC (book debt) for Rs. 15 lakhs, ILC for Rs. 30 lakhs and Bank Guarantee limit for Rs. 5 lakhs. It was subject to certain compliance by the Branch and the borrower. Loan documents including a guarantee deed of Smt. Shanti Devi and Smt. Ram Rakhi CC No. 06/12 & ID No. 64/19 Page 10 of 402 State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 were executed by the borrowers/guarantors on 08.03.2002 in the presence of bank officials.
5.4. In pursuance of said criminal conspiracy, A1 Arvind Johri and A2 Mahan Mukherjee submitted fake/ bogus Sale Deed of 22.04.1964 in respect of property No. N154, Greater Kailash, Part 1, New Delhi, whereas Smt. Shanti Devi had never mortgaged the said property against loan to M/s Gaaman Global Exports vis a vis the said Sale Deed was furnished vide letter dated 25.03.2002, which letter was discovered to be in writing of A1 Arvind Johri. By another letter dated 10.04.2002, Relinquishment Deed dated 19.06.2001 purported to be executed by Smt. Shanti Devi in favour of Ms. Seema Nagwal was also furnished to the Punjab National Bank and that the said letter is also in the writing of Arvind Johri. The bank wrote letter of acknowledgement of title documents to Smt. Shanti Devi, it was returned undelivered but Mahan Mukherjee and other accused in connivance of K.B. Relan wrote a letter purported to be written by Smt. Shanti Devi to the effect that the acknowledgement was returned undelivered to the Bank because in her absence her servant had returned the said letter. Accused Seema Nagpal impersonated as Shanti Devi to execute loan documents of property No. N154, Greater Kailash, Part 1, New Delhi, pursuant to conspiracy among Arvind Johri, Mahan CC No. 06/12 & ID No. 64/19 Page 11 of 402 State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 Mukherjee and other accused persons inclusive of K.B. Relan who facilitated to A7 Seema Nagpal to impersonate as Shanti Devi, her identity card was not obtained. The documents of property were arranged by Anil Kumar Mahjan. 5.5. On 29.07.2002, accused Mahan Mukherjee being partner of M/s Gaaman Global Exports, in conspiracy of other accused persons submitted another proposal for enhancement of Fund Based Facilities to Rs. 150 lakhs, Nonfund Based Facilities of Rs. 50 lakhs and Term Loan of Rs. 9.64 lakhs and it was proposed to replace security of single property of B65, Pashchimi Marg, Vasant Vihar, New Delhi of Ms. Stella A Biswas, having value of Rs. 500 lakhs in place of earlier two properties i.e. Property No. A208, Old Gupta Colony, New Delhi of Smt. Ram Rakhi having value of Rs. 50 lakhs and Property No. N154, Greater Kailash, Part 1, New Delhi of Smt. Shanti Devi having value of Rs. 125 lakhs. It was processed by A6 R.L. Jain and A8 K.B. Relan and CC (H) limit of Rs. 150 lakhs, CC (Book debt) of Rs. 25 lakhs, ILC of Rs.40 lakhs and bank guarantee limit of Rs. 10 lakhs were recommended on 09.08.2002 to the Regional Office for sanction. This proposal was processed on 30.01.2003 by Sh. S.S. Chhabra, Manager, A10 Anil Aggarwal, Senior manager (Credit) and Sh. Vinay Kapoor, Chief Manager at the Regional Office. On 30.01.2003, CC No. 06/12 & ID No. 64/19 Page 12 of 402 State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 Sh. V.K. Sharma, Regional Manager sanctioned the CC (H) limit of Rs. 125 lakhs, CC (Book Debt) of Rs. 15 lakhs, ILC of Rs. 30 lakhs and ILG limit of Rs. 5 lakhs subject to certain stipulated conditions. 5.6. However, pending sanction of the aforesaid limits, A2 Mahan Mukherjee in furtherance of said criminal conspiracy with other accused persons vide his letter dated 01.08.2002 addressed to Sr. Manager, NRB, New Delhi requested for sanction of an Adhoc limit of Rs. 35 lakhs. This proposal was recommended by A6 R.L. Jain and Sh. R.M. Sachdeva and sent to Regional Office on 02.08.2002. The same was also seen by A8 K.B. Relan, Branch Manager. It was processed in the Regional Office on 13.08.2002 by Sh. S.S. Chhabra, Manager, A10 Anil Aggarwal, Senior Manager (Credit) and Sh. Vinay Kapoor, Chief Manager and the same was sanctioned by Sh. V.K. Sharma, Regional Manager, Regional Office. The Regional Office conveyed the sanction to the Branch vide letter dated 13.08.2002 and it was also informed that adhoc limit was valid only for three months. The Branch was also directed to execute the documents. Consequently, accused Mahan Mukherjee and Rajendra S. Raikwar executed various loan documents as borrowers. A7 Seema Nagpal also executed the loan documents as "Shanti Devi" and "Ram Rakhi" in presence of bank officials.
CC No. 06/12 & ID No. 64/19 Page 13 of 402
State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 5.7. The borrower was informed by the Branch vide letter dated 04.02.2003 about enhancement of limit allowed by Regional Office with existing collateral securities, however K.B. Relan wrote to Regional Manager for permission to replace security of new property B65, Pashchimi Marg, Vasant Vihar, New Delhi in place of other two properties. Regional Office raised the query about the said property No. B65, Pashchimi Marg, Vasant Vihar, New Delhi and PNB, NRB wrote another letter to the Regional Office by furnishing photocopy of title/ Perpetual Deed of B65, Pashchimi Marg, Vasant Vihar, New Delhi. The loan documents were executed by Mahan Mukherjee, Rajendra S. Raikwar, Arvind Johri, Ms. Stella A. Biswas, Smt. Shanti Devi and Smt. Ram Rakhi in the presence of bank officials. It was accused Margrate Anthony, who pursuant to conspiracy with Arvind Johri, Mahan Mukherjee and other accused, impersonated as Stella A. Biswas and executed loan documents as owner of property No. B65, Pashchimi Marg, Vasant Vihar, New Delhi and it was discovered that photograph of Margrate Anthony was taken in the bank and affixed in the agreement of guarantee purported as Stella A. Biswas. Identity proof of Margrate Anthony was not obtained by bank officers. 5.8. In February 2003, accused Mahan Mukherjee, as a partner of M/s Gaaman Global Exports vide letter dated 13.02.2003 requested for sanction of CC No. 06/12 & ID No. 64/19 Page 14 of 402 State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 Packing Credit Limit of Rs. 1.25 crores on the ground that they have received an export order from M/s FDL Exports, London. A6 R.L. Jain, Loan officer processed the said loan proposal and A8 K.B. Relan recommended and forwarded the same to Regional Office for sanction. This loan proposal was processed in the Regional Office by Sh. S.S. Chhabra, Manager, A10 Anil Aggarwal, Senior Manager (Credit) and Sh. Vinay Kapoor, Chief Manager and the same was sanctioned by Sh. V.K. Sharma, Regional Manager, Regional Office and the sanction was conveyed to the branch for Packing Credit limit of Rs. 150 lakhs and FOBNLC (Foreign outward bill negotiated under letter of credit) of Rs. 150 lakhs with overall ceiling of Rs. 150 lakhs on various terms and conditions as specified. The limit was to be guaranteed by personal guarantees. Accordingly, Mahan Mukherjee and Rajendra S. Raikwar executed the various documents with the bank on 13.03.2003 and the guarantors, namely, Smt. Ram Rakhi, Smt. Shanti Devi, A1 Arvind Johri, Smt. Shefali Mukherjee, Sh. A. Banjerjee, fatherinlaw of Mahan Mukherjee and Ms. Stella A. Biswas executed the agreement of Guarantee on various dates between 15.03.2003 and 07.04.2003. The property B65, Pashchimi Marg, Vasant Vihar, New Delhi could be mortgaged after permission, however, permission to mortgage was not received from DDA, thus M/s Gaaman Global Exports offered another property CC No. 06/12 & ID No. 64/19 Page 15 of 402 State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 bearing No. A284, New Friends Colony, New Delhi as collateral security till the permission to mortgage the Vasant Vihar property is received. 5.9. Accused Mahan Mukherjee and other accused in furtherance of their criminal conspiracy submitted forged Conveyance Deed and Perpetual Lease Deed of property No. A284, New Friends Colony, New Delhi, whereas Sh. Anil Kumar Jaggi, the owner of the said property never mortgaged his property to PNB, NRB against loan availed by M/s Gaaman Global Exports. Moreover, on the conveyance deed submitted to the bank, there is photograph of accused Surender Kapoor and it was revealed during investigation that accused Surender Kapoor in criminal conspiracy with Mahan Mukherjee and Arvind Johri and other accused persons impersonated himself as Anil Kumar Jaggi and executed the loan documents in the bank against credit facility availed by M/s Gaaman Global Exports. Accused K.B. Relan and R.L. Jain in connivance with other accused persons did not obtain any identity proof of Surender Kapoor and facilitated him to impersonate as Anil Kumar Jaggi. 5.10. A8 K.B. Relan in furtherance of the said criminal conspiracy did not ensure the end use of credit facilities sanctioned to M/s Gaaman Global Exports and facilitated Mahan Mukherjee and Rajendra S. Raikwar and other CC No. 06/12 & ID No. 64/19 Page 16 of 402 State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 accused persons in siphoning off the loan amount sanctioned to M/s Gaaman Global Exports.
5.11. Raja Ram Sharma, an employee of M/s Gaaman Global Exports, accused Mahan Mukherjee and Arvind Johri got opened a Current Account on 27.03.2003 in the name of M/s Balaji Trading Company with IndusInd Bank, Nehru Place, New Delhi and certain formalities of letter, rent agreement etc. was furnished by mentioning the address of H29B, Kalkaji, New Delhi as rented premises of Raja Ram Sharma and those documents of rent agreement etc. was arranged by Arvind Johri. A sum of Rs. 78 lakhs was transferred to the account of M/s Balaji Trading Company from the account of M/s Gaaman Global Exports with PNB, NRB and thereafter the same was withdrawn in cash. 5.12. Another account No. 451 was also opened in the name of M/s Balaji Trading Company with City Union Bank, Karol Bagh, New Delhi. It was introduced by Arvind Johri and a rent agreement was also furnished showing that Raja Ram Sharma is tenant of Rahul Kumar in premises No. H 29B, Kalakaji, New Delhi. A sum of Rs. 16 lakhs approx. was transferred to the account of M/s Balaji Trading Company from the account of M/s Gaaman CC No. 06/12 & ID No. 64/19 Page 17 of 402 State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 Global Exports with PNB, NRB which was subsequently withdrawn in cash. This account was closed on 28.04.2003.
5.13. Raja Ram Sharma opened another account No. 20959 in the name of M/s L.B. Enterprises on 03.01.2003 with Corporation Bank, Shalimar Bagh, Delhi. It was opened on the introduction of Sh. Rajinder Singh Saluja and a rent agreement between Raja Ram Sharma and landlord Deepak Kumar in respect of premises No. O24, Chanakya PlaceII, New Delhi was filed. A sum of Rs. 12.87 lakhs approx. was transferred to the account of M/s L.B. Enterprises from the account of M/s Gaaman Global Exports with PNB, NRB and thereafter the amount was withdrawn in cash. This account was also closed on 18.05.2004. 5.14. Arvind Johri and Ashok Mukherjee, partners of M/s Swastik Exports opened a current account No 5102 with PNB, NRB which was introduced by Mahan Mukherjee and a sum of Rs.10,05,000/ was transferred from the account of M/s Gaaman Global Exports to the account of M/s Swastik Exports and after the credit of said amount, the whole amount was withdrawn in cash. This account was closed on 07.12.2002.
5.15. During course of the searches conducted in this case, a cash book was seized from the office of M/s Gaaman Global Exports at A161, Safdarjung CC No. 06/12 & ID No. 64/19 Page 18 of 402 State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 Enclave, New Delhi maintained by Raja Ram Sharma under the directions of Arvind Johri and Mahan Mukherjee. This cash book contains various entries showing payments made to the bank officials of PNB. During February 2002 to August 2003, various loan proposals submitted by M/s Gaaman Global Exports were dealt with and favourably considered for the grant of credit facilities by A8 K.B. Relan, A9 R.L. Jain and A10 Anil Aggarwal who had obtained illegal gratification for the same. A8 K.B. Relan in furtherance of said criminal conspiracy with other accused persons had also allowed excess overdrawings in the account of M/s Gaaman Global Exports by exercising his discretionary powers vis a vis huge withdrawal against banking norms. 5.16. The account of M/s Gaaman Global Exports turned NPA on 31.03.2004 and a total amount of Rs.3.36 crores is outstanding in the said account which includes the principal as well as interest levied upto 31.03.2004. The accused persons cheated the PNB, NRB, New Delhi and caused a wrongful loss of Rs. 3.36 crores approx. and corresponding gain to themselves. 5.17. Since bank officers are involved in the conspiracy and commission of other offences, sanction order to prosecute A8 K.B. Relan, Branch Manager CC No. 06/12 & ID No. 64/19 Page 19 of 402 State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 and A10 Anil Aggarwal, Senior Manager (Credit) at Regional Office were obtained from the competent authority.
5.18. A6. R.L. Jain was retired government servant at the time of filing the chargesheet and hence sanction was not required to be obtained to prosecute him.
6. It is relevant to mention here that Raja Ram Sharma, who was chargesheeted as Accused No. 4, was given pardon vide order dated 05.09.2007 and he became Approver/ state witness in the instant case. COGNIZANCE OF THE OFFENCE
7. Cognizance of the offences mentioned in the chargesheet was taken by the Ld. Predecessor vide order dated 17.12.2007 and all the accused persons were directed to be summoned. All the accused persons appeared pursuant to service of summons except A4 Raja Ram Sharma who was pardoned vide order dated 05.09.2007 and A6 R.L. Jain who was reported to be expired on 13.10.2007. His death was verified and proceedings qua him was abated vide order dated 21.05.2008. There was compliance of Section 207 Cr.P.C. qua remaining accused persons and then case proceeded for submissions on the point of charge.
CC No. 06/12 & ID No. 64/19 Page 20 of 402
State vs. Arvind Johri. & Ors Judgment dt.18.10.2022
CHARGE
8. Submissions were made on behalf of both the sides on the point of charge and vide order dated 17.04.2013, the Ld. Predecessor disposed of their contentions concluding that certain charges are made out against the accused persons. Vide order dated 14.05.2013, formal charge was framed against the accused persons as detailed hereunder: 8.1. A2 Mahan Mukherjee, A3 Rajendra S. Raikwar, A5 Anil Kumar Mahajan, A7 Seema Nagpal, A8 K.B. Relan, A10 Anil Aggarwal and A11 Surender Kapoor, all were charged under Section 120B of the IPC, read with Section 13 (1) (d), read with Section 13 (2) of the Prevention of Corruption Act ("in short PC Act"), 1988 read with Sections 167, 419, 420, 467, 468 and 471 IPC for the allegations that during the period 20012003, at Delhi, they were party to a criminal conspiracy whereby they agreed to do or cause to be done an illegal act, to wit, to cheat Punjab National Bank, New Rohtak Road Branch, New Delhi, pursuant to which A2 Mahan Mukherjee and A3 Rajendra S. Raikwar alongwith other coaccused persons by deceiving the said bank, fraudulently or dishonestly induced the said bank to grant them various credit facilities to the tune of approximately Rs. 3.15 crores and caused wrongful loss CC No. 06/12 & ID No. 64/19 Page 21 of 402 State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 of Rs. 3.36 crores to the said bank on the basis of forged documents in respect of properties bearing No. (i) 208, Old Gupta Colony, Vijay Nagar, Delhi,
(ii) N154, Greater Kailash, Part 1, New Delhi, (iii) B65, Paschimi Marg, Vasant Vihar, New Delhi & (iv) A284, New Friends Colony, New Delhi, which were forged/arranged by A5 Anil Mahajan; and A7 Seema Nagpal impersonated as Smt. Ram Rakhi and Smt. Shanti Devi and executed/forged the loan documents as owner of property bearing No. N154, Greater Kailash, Part 1, New Delhi; and A11 Surender Kapoor impersonated as Sh. Anil Kumar Jaggi and executed forged loan documents as owner of property bearing No. A284, New Friends Colony, New Delhi; and A8 K.B. Relan & A10 Anil Aggarwal being the public servants committed criminal misconduct i.e. by corrupt or illegal means or by abusing their position as a public servant or while holding office as a public servant, obtained for themselves any valuable thing or pecuniary advantage i.e. Rs.1,00,100/ and Rs.1,50,000/ respectively, and/ or obtained for any other person i.e. A2 Mahan Mukherjee and A3 Rajendra S. Raikwar, partners of M/s Gaaman Global Exports valuable thing or pecuniary advantage i.e. above credit facilities without any public interest. A8 K.B. Relan being a public servant and as such, charged with preparation of a document i.e. report dated 23.01.2002, prepared the same in a manner knowing the same to be CC No. 06/12 & ID No. 64/19 Page 22 of 402 State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 incorrect, intending thereby to cause or knowing it to be likely that he may thereby cause injury to any person i.e. Punjab National Bank, New Rohtak Road branch, New Delhi.
8.2. A2 Mahan Mukherjee & A3 Rajendra S. Raikwar were also charged for substantive offence punishable under Section 420 IPC for the allegations that they during the period 20012003, at Delhi, being partners of M/s Gaaman Global Exports, cheated Punjab National Bank, New Rohtak Road Branch, New Delhi and thereby dishonestly induced the said bank to grant them various credit facilities amounting to Rs. 3.15 crores (approximately) on the basis of forged documents with respect to properties bearing No. (i) 208, Old Gupta Colony, Vijay Nagar, Delhi, (ii) N154, Greater Kailash, Part 1, New Delhi, (iii) B65, Paschimi Marg, Vasant Vihar, New Delhi & (iv) A284, New Friends Colony, New Delhi, which were forged/arranged by coaccused No. 5 Anil Kumar Mahajan; and impersonated by coaccused No. 7 Seema Nagpal as Shanti Devi who executed/forged the loan documents as owner of property baring No. N154, Greater Kailash, Part 1, New Delhi; and impersonation by A11 Surender Kapoor as Anil Kumar Jaggi who forged/loan documents as owner of property bearing No. A284, New Friends Colony, New Delhi. CC No. 06/12 & ID No. 64/19 Page 23 of 402
State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 8.3. A2 Mahan Mukherjee & A3 Rajendra S. Raikwar were further charged for the offence punishable under Section 471 IPC for the allegations that during the aforesaid period and place, they being partners of M/s Gaaman Global Exports fraudulently or dishonestly used as genuine documents, to wit, property documents in respect of properties bearing No. (i) 208, Old Gupta Colony, Vijay Nagar, Delhi, (ii) N154, Greater Kailash, Part 1, New Delhi, (iii) B65, Paschimi Marg, Vasant Vihar, New Delhi & (iv) A284, New Friends Colony, New Delhi, which they knew or had reason to believe to be forged documents.
8.4. A5 Anil Mahajan was also charged for the substantive offence punishable under Section 467 IPC for the allegations that he during the period 20012003, at Delhi, forged certain documents purporting to be a valuable security, to wit, property documents in respect of properties bearing No. (i) 208, Old Gupta Colony, Vijay Nagar, Delhi, (ii) N154, Greater Kailash, Part 1, New Delhi, (iii) B65, Paschimi Marg, Vasant Vihar, New Delhi & (iv) A284, New Friends Colony, New Delhi.
8.5. A5 was further charged for the offence punishable under Section 468 IPC for the allegations that during the aforesaid period and place, he forged CC No. 06/12 & ID No. 64/19 Page 24 of 402 State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 certain documents, to wit, property documents in respect of properties bearing No. (i) 208, Old Gupta Colony, Vijay Nagar, Delhi, (ii) N154, Greater Kailash, Part 1, New Delhi, (iii) B65, Paschimi Marg, Vasant Vihar, New Delhi & (iv) A284, New Friends Colony, New Delhi, intending that the documents forged shall be used for the purpose of cheating.
8.6. A7 Seema Nagpal was charged for the substantive offence punishable under Section 419 IPC for the allegations that she during the period 20012003, at Delhi, pretending to be Smt. Shanti Devi cheated Punjab National Bank, New Rohtak Road branch, Delhi, by forging/executing loan documents in respect of property No. N154, Greater Kailash, Part 1, New Delhi. 8.7. A7 Seema Nagpal was further charged for the offence punishable under Section 467 IPC for the allegations that she during the period 20012003, at Delhi, forged certain documents purported to be a valuable security, to wit, loan documents in respect of property No. N154, Greater Kailash, Part 1, New Delhi.
8.8. A7 Seema Nagpal was also charged for the offence punishable under Section 468 IPC for the allegations that she during the period 20012003, at Delhi, forged certain documents, to wit, loan documents, in respect of CC No. 06/12 & ID No. 64/19 Page 25 of 402 State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 property N154, Greater Kailash, Part 1, New Delhi, intending that the documents forged shall be used for the purpose of cheating. 8.9. A11 Surender Kapoor was charged for the substantive offence punishable under Section 419 IPC for the allegations that he during the period 20012003, at Delhi, pretending to be Anil Kumar Jaggi cheated Punjab National Bank, New Rohtak Road Branch, Delhi, by forging/executing loan documents in respect of property No. A284, New Friends Colony, New Delhi. 8.10. A11 was further charged for the offence punishable under Section 467 IPC for the allegations that he during the period 20012003, at Delhi, forged certain documents purported to be a valuable security, to wit, loan documents in respect of property No. A284, New Friends Colony, New Delhi. 8.11. A11 was also charged for the offence punishable under Section 468 IPC for the allegations that he during the period 20012003, at Delhi, forged certain documents, to wit, loan documents, in respect of property No. A284, New Friends Colony, New Delhi, intending that the documents forged shall be used for the purpose of cheating.
8.12. Accused no. A8 K. B. Relan was charged for the offence punishable under Section 13 (1) (d) read with Section 13 (2) of the Prevention of Corruption CC No. 06/12 & ID No. 64/19 Page 26 of 402 State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 Act, 1988 for the allegations that he during the period 20012003, at Delhi, being a public servant i.e. the Branch Manager of Punjab National Bank, New Rohtak Road Branch, Delhi committed the offence of criminal misconduct, to wit, by corrupt or illegal means or by abusing his position as a public servant or while holding office as a public servant, obtained for himself a sum of Rs.1,00,100/ and/or for accused no. 2 Mahan Mukherjee, accused no. 3, Rajendra S. Raikwar, partners of M/s Gaaman Global Exports, various credit facilities to the tune of Rs. 3.15 crores (approximately) on the basis of forged documents submitted by the aforesaid coaccused persons in respect of properties bearing No. (i) 208, Old Gupta Colony, Vijay Nagar, Delhi, (ii) N 154, Greater Kailash, PartI, New Delhi, (iii) B65, Paschimi Marg, Vasant Vihar, New Delhi & (iv) A284, New Friends Colony, New Delhi which were forged by coaccused No. 5 Anil Kumar Mahajan; and impersonation by co accused No. 7 Seema Nagpal as Shanti Devi who executed forged loan documents as owner of property bearing no. N154, Greater Kailash, PartI, New Delhi; and impersonation by coaccused No. 11 Surender Kapoor as Anil Kumar Jaggi who executed forged loan documents as owner of property bearing No. A284, New Friends Colony, New Delhi.
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State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 8.13. A8 K.B. Relan was further charged for the offence punishable under section 167 IPC for the allegations that he during the aforesaid period and place being a public servant i.e. Branch Manager, Punjab National Bank, New Rohtak Road Branch, Delhi and being as such public servant was charged for preparation of document i.e. report dated 23.01.2002 in respect of property No. N154, GK, PartI, New Delhi with regard to loan proposal of A2 Mahan Mukherjee and A3 Rajendra S. Raikwar, partners of M/s Gaaman Global Exports, which document was prepared in a manner knowing the same to be incorrect, intending thereby to cause or knowing it to be likely that he may thereby cause injury to any person i.e. Punjab National Bank, New Rohtak Road Branch, Delhi.
8.14. Accused no. A10 Anil Aggarwal was charged for the substantive offence punishable under Section 13 (1) (d) read with Section 13 (2) of the Prevention of Corruption Act, 1988 for the allegations that he during the period 20012003, at Delhi being a public servant i.e. the Senior Manager of Punjab National Bank, New Rohtak Road Branch, Delhi committed the offence of criminal misconduct, to wit, by corrupt or illegal means or by abusing his position as a public servant or while holding office as public servant, obtained for himself a sum of Rs.1,50,000/ and/or for A2 Mahan Mukherjee, A3, CC No. 06/12 & ID No. 64/19 Page 28 of 402 State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 Rajendra S. Raikwar, partners of M/s Gaaman Global Exports, various credit facilities to the tune of Rs.3.15 crores (approximately) on the basis of forged documents submitted by the aforesaid coaccused persons in respect of properties bearing No. (i) 208, Old Gupta Colony, Vijay Nagar, Delhi, (ii) N 154, Greater Kailash, PartI, New Delhi, (iii) B65, Paschimi Marg, Vasant Vihar, New Delhi & (iv) A284, New Friends Colony, New Delhi which were forged by coaccused No. 5 Anil Kumar Mahajan; and impersonation by co accused No. 7, Seema Nagpal as Shanti Devi who executed forged loan documents as owner of property bearing no. N154, Greater Kailash, PartI, New Delhi; and impersonation by coaccused No. 11, Surender Kapoor as Anil Kumar Jaggi who executed forged loan documents as owner of property bearing No. A284, New Friends Colony, New Delhi.
9. It is pertinent to mention here that during course of arguments on charge, A1 Arvind Johri had died on 23.09.2011 and the proceedings were abated against him on 14.10.2011 prior to formal order on the point of charge. Similarly, A6 Margrate Anthony had expired on 14.08.2012 and the proceedings were abated against her on 10.09.2012 prior to framing of formal charge.
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State vs. Arvind Johri. & Ors Judgment dt.18.10.2022
PROSECUTION EVIDENCE
10. In order to prove the charges, the prosecution got examined 47 witnesses. Keeping in view nature of testimony, interlinked facts and documents and on the basis of purpose of their examination with relevant facts, the witnesses examined by the prosecution are classified as follows : With regard to property bearing No. 208, Old Gupta Colony, Vijay Nagar, Delhi owned by Smt. Ram Rakhi :
1. PW5 : Sh. Rajesh Kumar (grandson of Smt. Ram Rakhi)
2. PW13 : Sh. S.M. Jain (Assistant Archivist, Department of Delhi Archives, Govt. of NCT of Delhi)
3. PW14 : Sh. Dinesh Kumar Gondyan (Sub RegistrarI, Kashmere Gate, Delhi)
4. PW18 : Smt. Neelam Gulati (wife of Sh. Jogender Gulati, grandson of Smt. Ram Rakhi) With regard to property bearing No. N154, Greater Kailash, PartI, New Delhi owned by Smt. Shanti Devi :
1. PW2 : Smt. Anuradha Singh (daughterinlaw of Smt. Shanti Devi)
2. PW6 : Sh. Desh Raj Singh (Sub Registrar III, Asaf Ali Road, New Delhi) CC No. 06/12 & ID No. 64/19 Page 30 of 402 State vs. Arvind Johri. & Ors Judgment dt.18.10.2022
3. PW19 : Sh. Virender Kumar
4. PW43 : Smt. Rukmani Khanna (neighbor of Smt.Shanti Devi) With regard to property No. B65 Paschimi Marg, Vasant Vihar, New Delhi owned by Ms.Stella Anima Biswas :
1. PW9 : Sh. Ramesh Chand (Record Keeper in the Office of Sub RegistrarIII, Asaf Ali Road, Delhi)
2. PW10 : Sh. M.C. Singhal (Dy. Director, Cooperative Society and Group Housing Branch, DDA, Vikas Sadan)
3. PW20 : N.P. Nidaria, Manager (Legal), Legal & Housing Property Finance Department, LIC, Cannaught Place, New Delhi
4. PW45 : Sh. Lalit Mohan (Assistant in the office of Cooperative Society, C Block, Second Floor, Vikas Sadan, Delhi Development Authority, INA, New Delhi With regard to property No. A284, New Friends Colony, Delhi owned by Sh. Anil Kumar Jaggi :
1. PW1 : Sh. Anil Kumar Jaggi (owner of the property)
2. PW15 : Sh. R.K. Sharma (Lease Administration Officer, CC No. 06/12 & ID No. 64/19 Page 31 of 402 State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 Delhi Development Authority, Delhi)
3. PW16 : Sh. Sanjay Kumar Rawat (UDC, Office of Sub RegistrarV, Mehrauli, New Delhi)
4. PW36 : Sh. D.C. Sharma (Assistant, Cooperative Society Branch, Vikas Sadan, INA, Delhi Development Authority)
5. PW40 : Sh. Nakul Chand (Officer Superintendent, New Friends Cooperative House Building Society Ltd.) With regard to sanction for prosecution of Public Servants :
1. PW3 : Sh. S.K. Roy (General Manager/Disciplinary Authority, Punjab National Bank)
2. PW4 : Sh. Ved Vyas (Dy. General Manager, Punjab National Bank, South Delhi Zone) With regard to search conducted at the office premises of M/s Gaaman Global Exports :
1. PW25 : Sh. S.N. Kapoor (Manager, Reconciliation Department, Oriental Bank of Commerce, Head Office, Rajendra Place, New Delhi)
2. PW30 : Sh. Brij Mohan Pandit (Inspector, CBI, EOWI) CC No. 06/12 & ID No. 64/19 Page 32 of 402 State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 Bank witnesses at Branch Office :
1. PW12 : Sh.R.M. Sachdeva (Manager)
2. PW17 : Sh. D.K. Parashar (Officer)
3. PW22 : Sh. Ramesh Kalia (Loan Officer)
4. PW23 : Sh. Ashok Ram Chandani (Clerk)
5. PW32 : Sh. Rajiv Mahajan (Clerk)
6. PW35 : Sh. Nirbhay Kumar (Senior Manager)
7. PW38 : Sh. Dinesh Kumar Kaushik (Clerk)
8. PW44 : R.P. Bansal (Manager (loan)) Bank witnesses at Regional Office :
1. PW31 : Sh. Vinay Kapoor (Chief Manager)
2. PW34 : Sh. Manmohan Sharma (Deputy Manager)
3. PW37 : Sh. S.S. Chhabra (Manager)
4. PW42 : Sh. V.K. Sharma (Senior Regional Manager) Other bank witnesses :
1. PW21 : Sh. Saurabh Chopra (Conversion Executive, Indusind Bank, Nehru Place Branch, New Delhi)
2. PW24 : Sh. Anil Kumar Malik (Officer of Corporation Bank, Shalimar Branch, New Delhi)
3. PW26 : Sh. Shankar Lal Gautam (Officer, Canara Bank, Deen Dayal Upadhayay Marg, Delhi)
4. PW28 : Sh. U. Bala Subramanian (Officer City Union Bank, Karol Bagh Branch, Delhi) CC No. 06/12 & ID No. 64/19 Page 33 of 402 State vs. Arvind Johri. & Ors Judgment dt.18.10.2022
5. PW29 : Sh. V.K. Kapoor (Internal Chief Auditor, Punjab National Bank, Parliament Street, New Delhi)
6. PW33 : Mrs. K. Kamala (Assistant Manager, City Union Bank, Karol Bagh Branch, New Delhi) Other witnesses:
1. PW7 : Raja Ram Sharma (the Approver)
2. PW8 : Sh. Rajesh Kumar Singh (Additional District Judge, Tis Hazari, Delhi
3. PW11 : Sh. R.S. Saluja (Proprietor M/s Saluja Enterprises)
4. PW27 : Sh. Kapil Kumar Jain (Chartered Accountant, M/s Kapil Jain and Associations)
5. PW41 : Sh. M.C. Joshi (Assistant Government Examiner, CFSL complex, Chandigarh, the GEQD) Investigating Officers of the case :
1. PW39 : Sh. R.P. Kaushal ( SP, CBI)
2. PW46 : Sh. B.S. Bisht (Inspector, CBI, EOWI)
3. PW47 : Satendra Singh (Inspector, CBI)
11. The detailed testimony of the relevant witnesses shall be discussed at the later and appropriate stage of the judgment.
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State vs. Arvind Johri. & Ors Judgment dt.18.10.2022
12. It is relevant to mention here that during course of recording the evidence of prosecution witnesses, A7 Seema Nagpal had died on 30.11.2014 and proceedings were abated against her vide order dated 19.01.2015. Further, A5 Anil Mahajan had died on 06.11.2020 and A11 Surender Kapoor had died on 27.04.2021 during course of the final arguments and the proceedings were abated against them vide orders dated 01.02.2021 and 26.08.2021 respectively.
13. In this way, the trial remained only against four accused persons, namely, A2 Mahan Mukherjee, A3 Rajendra S. Raikwar (both partners of M/s Gaaman Global Exports), A8 K.B. Relan (Senior Manager/Branch Head, PNB, NRB) & A10 Anil Aggarwal, (Senior Manager (Credit), Regional Office).
STATEMENT OF ACCUSED PERSONS
14. After closure of prosecution evidence, statements of A2 Mahan Mukherjee, A3 Rajendra S. Raikwar, A8 K.B. Relan & A10 Anil Aggarwal were recorded without oath individually under Section 313 read with 281 Cr.P.C. by putting the adverse circumstances in oral evidence and documentary records appearing against them. They have responded in different expressions. CC No. 06/12 & ID No. 64/19 Page 35 of 402
State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 14.1. A2 Mahan Mukherjee has responded the questions/ circumstances that either the facts are not known to him or they are incorrect or some of them are correct. The admitted circumstances are very limited to the extent that Arvind Johri was CEO in the firm M/s Gaaman Global Exports or the other accused Rajendra S. Raikwar was partner or Raja Ram Sharma was an employee vis a vis bank accounts were opened by Rajaram Sharma in the other banks as well as it was Anil Mahajan, who arranged the property documents for loan applications. He also admits about transfer of certain amount from the account of M/s Gaaman Global Exports to the other accounts of M/s Balaji Trading Company etc. He denies the other allegations put to him and he compiles his stand in the conclusion of his statement that it was a false and fabricated case registered against him despite his innocence. He further pleads that he has been cheated by Rajaram Sharma and A1 Arvind Johri, bank accounts in the name of fake companies of M/s Balaji Trading Company, M/s L.B. Enterprises were opened by Rajaram Sharma and the amount was transferred from the account of M/s Gaaman Global Exports and transferred to those accounts opened by Rajaram Sharma and the cash was withdrawn. Moreover, there was old reputed rice trading firm M/s Balaji Trading Company in Naya Bazar but Raja Ram Sharma opened accounts in the name of that firm M/s Balaji Trading company CC No. 06/12 & ID No. 64/19 Page 36 of 402 State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 in different bank and money was transferred and withdrawn by committing fraud by them. Consequently, M/s Gaaman Global Exports suffered losses and it could not repay the loan amount. Since the loan was against the stock of rice, the rice stock of Rs. 1.5 crores was handed over to the bank, who sealed and locked the godown and took possession of the stocks. In addition, a sum of Rs.1 crore had been paid into the bank account through DRT. Accused Mahan Mukherjee had opted for defence evidence.
14.2. A3 Rajendra S. Raikwar was also asked to explain about the adverse circumstances against him. He also responded them by way of different expressions as if he was not aware of certain facts or many circumstances are not known to him, but some of the facts are correct (like there was bank account opened with PNB, NRB in the name of M/s Gaaman Global Exports or about the name of the partners, the partnership or reconstituted partnership). He also pleaded his ignorance that witnesses have deposed falsely as well as he was chargesheeted wrongly. He narrates certain facts that he is victim at the hand of others. He knows Mahan Mukherjee from college time. He was assisting his father in agriculture but in 1998, amidst of family partition, he met Mahan Mukherjee who convinced Rajendra S. Raikwar to come to Delhi and start rice exports since Mahan Mukherjee had great experience in the field. There was CC No. 06/12 & ID No. 64/19 Page 37 of 402 State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 family partition in the property, a sum of Rs. 46 lakhs came to the share of Rajendra S. Raikwar. He was convinced by Mahan Mukherjee to see the rice firm as to how rice is exported and he also took the accused to rice mill in Karnal. Then Mahan Mukherjee set up a proprietorship firm under the name M/s Gaaman Global Exports and in March 1999 he asked accused Rajendra S. Raikwar to join the business and it was 02.04.1999 when partnership firm was established and it took running business of M/s Gaaman Global Exports. During that period, some technicalities arose in respect of letter of credit and a buyer from Saudi Arabia, there was loss of Rs. 17 lakhs and Karishma had retired from the partnership firm.
14.3. A3 further narrates that in February 2001, he shifted to Mumbai because of medical condition of his wife, his fatherinlaw also suffered acute cardiac problem and he could not leave Mumbai and for the purposes of operation of business certain cheques and documents were to be signed which he signed and it was Mahan Mukherjee who had conducted the entire business. Later Arvind Johri, was appointed CEO without his consent and knowledge and when he was inquiring about the business, it was assured that Arvind Johri, had vast business experience and there will be reimbursement of investment made by Rajendra S. Raikwar. Later, Mahan Mukherjee told that entire funds of the CC No. 06/12 & ID No. 64/19 Page 38 of 402 State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 company are stuck and he also negotiated with the bank to get loan to make purchases for export order and then he (Rajendra S. Raikwar) was asked that in order to do certain formalities he had to sign the loan papers and accordingly bank account was opened and loan papers were signed by him under the instructions of Mahan Mukherjee but he remained in Mumbai. In this way, loan was procured from Bank till March 2003 by accused Mahan Mukherjee, accused Rajendra S. Raikwar was just assisting to come out from the crunch and he never felt any foul play as well as Arvind Johri, never informed him about the affairs of the firm. Whenever he called Mahan Mukherjee and Arvind Johri, there was standard reply that since he was not involved in the business as well as his share of investment is going to be returned, he should not bother further. When CBI started the investigation in March 2004, then he realized what actually had happened. He did not opt for defence evidence. 14.4. A8 K.B. Relan, Branch Manager was also asked about the adverse circumstances appearing against him. There are composite replies, some circumstances were admitted to be correct. There was reply that he has no personal information and knowledge about other facts or he cannot say anything about some other circumstances vis a vis he has relied upon certain circulars of the bank and they have been referred repeatedly. The admitted facts with regard CC No. 06/12 & ID No. 64/19 Page 39 of 402 State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 to the officers and officials posted in the branch or about Arvind Johri, opening of the account in the name of M/s Gaaman Global Exports or its partners or certain records filed during loan application and so on. He was also able to confirm about signature or sanction by the regional officer or the officers who had made correspondence or about the noting. The loan application filed by M/s Gaaman Global Exports or its partners or executive or enhancement of limit from time to time or its recommendation or its sanctioning by the regional office. However, he was very specific about the guidelines referred in reply to Question No. 27, 28 and 63, those instructions and guidelines were followed with regard to processing the loan application or extension of limit vis a vis report of panel lawyers Sh. K.K. Sharma and Associates who had conducted the search at the office of Sub Registrar and verification of title documents was also done which was the requirement, then mortgage of property was accepted after following the guidelines. There was no report by the advocate about the deficiencies in the title deed, rather the property was found fit to be mortgaged by way of deposit of title deeds, even it was certified that the title deeds held in bank were genuine and enforceable. The documents in the name of Smt. Ram Rakhi were duly notarized which bore her photograph after verification. He emphasized that loan application was processed as per guidelines and CC No. 06/12 & ID No. 64/19 Page 40 of 402 State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 instructions, verification and search report was called and then recommendations were made for sanction of the loan.
14.5. Moreover, the official/dealing official, who handled the proposal might be entangled with CBI and in order to save themselves from the clutches of CBI, they made certain remarks against K.B. Relan, however, the same are not correct. Further, the CBI had worked on story and not on the facts for want of experience of bank finance cases. The bank guidelines and book of instructions or circular were not produced but pick and choose policy was applied by the IO. The concerned officer who initialed or worked on process note were not examined by the IO. Mr. Arvind Johri of M/s Gaaman Global Exports was tenant in the same vicinity of accused K.B. Relan, he came to know that accused is associated with PNB, NRB and he expressed his desire that his company would like to do banking business through the bank. Since banking is a business and bank needs customers and he was asked to come to the Bank. Then bank account was opened by M/s Gaaman Global Exports and requisite verification of forms, address was done. Then there was request for CC limit of Rs. 20 lakhs followed by other proposal and the same were considered and processed as per banking instructions, processed and rules. The property documents were got verified and search report was also furnished, one of the CC No. 06/12 & ID No. 64/19 Page 41 of 402 State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 properties N154, Greater Kailash was also sold out to realize the outstanding amount, despite prosecution claim that the title deeds are questionable. One lady namely Seema Nagpal had also given Rs. 1.5 crore to the bank. The guarantors are still there from whom money can be recovered as per law. Stocks were reportedly burnt but the bank had not lodged any claim. With regard to diary maintained by PW7 Raja Ram Sharma, accused K.B. Relan explained that similar entries shown in respect of Sh. S.S. Chhabra and the record is not believable, particularly Raja Ram Sharma himself says that he did not make any payment shown in the name of the officer in that diary/register vis a vis the payments which are more that Rs.2 lakhs were not recorded. Even prosecution has not arrayed the said S.S. Chhabra as an accused. The sanction to prosecute by order dated 04.06.2007 was admitted by the accused (in reply to question No.
57), however, while responding to other question (question no. 898), he said that the sanction was not as per norms and rules. The sanction order obtained from Sh. Ved Vyas (PW4) was also not proper as Sh. Ved Vyas was senior regional manager during 2003 and he had dealt with the case during the period when account became irregular. Thus, accused has done everything in the ordinary course of business, the Regional Office was keeping constant supervision and chasing to expedite the processing at branch level for sanctioning of enhanced CC No. 06/12 & ID No. 64/19 Page 42 of 402 State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 limit at their end, the documents were certified to be genuine which were considered for mortgage. He also did not opt for defence evidence. 14.6. A10 Anil Aggarwal has also responded the circumstances by different expressions like he does not know or he has no knowledge of those facts or he cannot say anything about certain circumstances, particularly, the state of affairs happening in the branch, however, he accept the circumstances pertaining to processing of file and sanctioning of loan which took place in the Regional Office after recommendation and reply to queries by the branch concern. Moreover, he was not in a position to say anything with regard to the proceeding took place in the branch at New Rohtak Road, Delhi with regard to documents by the parties or their guarantor. The accused confirms about the signature of the officer in the regional office, branch Manager, PNB, NRB vis a vis the sanction accorded by the regional office. Moreover, the sanction to prosecute by order dated 22.05.2007 (Ex.PW3/A) was admitted by the accused, in reply to Question No. 51), however, while responding to the question (Question No. 898), he said that he was wrongly chargesheeted based upon invalid sanction.
CC No. 06/12 & ID No. 64/19 Page 43 of 402
State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 14.7. He has also put his defence that he was made scapegoat for no fault of him as he was not sanctioning authority for the proposal sent by the branch and he had no role to sanction the limits, his role was only as a processing officer that too it was initially processed by desk officer and after his notes, the proposal used to come before him. Then, it used to be scrutinized by him and after giving comments it used to be put up before the Chief Manager, who further makes the comments and then put the same to Senior Regional Manager for its final decision. He complaints that he has been implicated falsely. He has not opted for defence evidence.
14.8. Statements of A5 Anil Mahajan and A11 Surender Kapoor were also recorded under Section 313 Cr.P.C, but since these accused have expired and proceedings against them stood abated, therefore their statements have not been noted down.
DEFENCE EVIDENCE
15. A2 Mahan Mukherjee himself opted to enter in the witness box, thus he was examined on oath as DW1. DW1 Mahan Mukherjee narrates the circumstances as to how he started the business of rice export in the year 1998 with accused Rajendra S. Raikwar in the name of firm M/s Gaaman Global CC No. 06/12 & ID No. 64/19 Page 44 of 402 State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 Exports, the business seen the growth after two years and then it was decided to start buying and stocking paddy from Haryana and at that time accused Arvind Johri joined the firm as CEO, he advised to go for bank finance since paddy had to be bought only in the season and stock had to be kept for producing rice. Then loan was taken against primary security of rice stock from PNB and bank had also asked for secondary collateral securities for properties. Since they were new in the paddy business and suffered some losses, goods were rejected by the foreign buyers because of quality. Then the firm suffered huge losses due to siphoning off funds by Arvind Johri in collusion with accountant Devgun Sharma. PNB had filed suit before Debts Recovery Tribunal, certain irregularities were observed by the Tribunal on the part of property owners of N154, Greater Kailash, Part I and property was attached by the Court. Later there was an agreement between the property owner to release the property on payment of Rs. 1 crore. The property was released against payment of Rs. 1 crore.
16. DW1 Mahan Mukherjee was crossexamined on behalf of CBI wherein he admitted that at the time of filing the chargesheet in this case, no settlement/payment had taken place with the PNB before the DRT. He further admitted that the issue of forgery of loan documents was not there before the CC No. 06/12 & ID No. 64/19 Page 45 of 402 State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 DRT. He further admitted that apart from the property No. N154, Greater Kailash PartI, there were other properties mortgaged to the PNB by the guarantors.
17. A5 Anil Mahajan had examined 5 witnesses to establish his defence, namely, Ms. Sarita Gautam (Assistant Section officer from the Office of SubRegisrarVII, INA, Vikas Sandan, New Delhi) as DW1, Sh. Jitin Malhotra (Manager, UCO Bank, East Punjabi Bagh, New Delhi) as DW2, Sh. Manmeet Sudhri Bhai Vyas (Assistant General Manager, UCO Bank, Punjabi Bagh Branch, New Delhi) as DW3, Smt. Raj Rani (mother of PW18 Smt. Neelam Gulati) as DW4 and Sh. Devak Ram (Forensic Document & Fingerprit Expert) as DW5.
18. A11 Surender Kapoor also opted to enter the witness box and he got examined himself as DW6.
19. However, since A5 Anil Mahajan & A11 Surender Kapoor have died and proceedings against them stood abated, evidence led by them is not being discussed. Findings in favour or against them would not serve any purpose and evidence led by them has no bearing qua the surviving accused persons.
FINAL HEARING
CC No. 06/12 & ID No. 64/19 Page 46 of 402
State vs. Arvind Johri. & Ors Judgment dt.18.10.2022
20. I have heard Sh. Raj Kamal, Ld. Public Prosecutor for State who opened the final submissions followed by submissions on behalf of accused persons. Ld. Public Prosecutor for CBI as well as the Ld. Defence Counsels have addressed the Court at length on various dates. The respective contentions of Ld. Prosecutor and all the Ld. Defence Counsels would make this judgment sufficiently long, hence their contentions are not being noted here, though while appreciating and assessing the evidences, contentions of respective parties shall be dealt with.
21. In nutshell, the Ld. Prosecutor while drawing attention of the Court to the testimonies of the witnesses as well as to the documents has contended that prosecution by oral and documentary evidence has successfully proved its case against all the accused persons. He further submitted that the prosecution has established that the partners of the firm M/s Gaaman Global Exports entered into a criminal conspiracy with the bank officers to avail the loan facilities and thereafter siphoned off the funds and ultimately cheated the bank resulting into huge loss of public money. Therefore, he has called upon the Court to return findings of guilt against all the surviving accused persons. CC No. 06/12 & ID No. 64/19 Page 47 of 402
State vs. Arvind Johri. & Ors Judgment dt.18.10.2022
22. The pith and substance of the contentions of the respective Ld. Defence counsels is that the prosecution has not been able to prove its case against the accused persons to whom they are respectively representing. The Ld. Defence Counsels also while drawing attention of the Court to the oral testimonies of the witnesses and documentary evidence have contended that there are no direct evidence, chain of circumstantial evidence is not complete, the witnesses are not reliable and credit worthy and the evidence available on record is not sufficient to hold without reasonable doubt that it were the accused persons who have committed the alleged offence. The Ld. Defence Counsels qua accused public servants submitted that the prosecution has failed to lead any concrete evidence to prove that they were in conspiracy with the private accused persons i.e. partners of M/s Gaaman Global Exports or that they have violated any of the banking rules, procedure or guidelines or they acted negligently or did not use the means available to them to verify the documents, guarantors and to secure the interest of the bank. Hence, all the Ld. Defence Counsels have prayed that accused persons may be acquitted of all the charges.
ANALYSIS, APPRECIATION AND FINDINGS CC No. 06/12 & ID No. 64/19 Page 48 of 402 State vs. Arvind Johri. & Ors Judgment dt.18.10.2022
23. The case of the prosecution, in brief, is that in order to cheat Punjab National Bank, New Rohtak Branch, New Delhi accused persons i.e. A1 Arvind Johri, CEO of M/s Gaaman Global Exports, A2 Mahan Mukherjee, A3 Rajendra S. Raikwar, both partners of M/s Gaaman Global Exports entered into a criminal conspiracy with the officials of Punjab National Bank and pursuant to the said criminal conspiracy they fraudulently obtained various credit facilities to the tune of Rs.3.15 crores approximately on the basis of forged documents. The borrowers also submitted the guarantees of the fake persons as collateral security against the loans availed by them besides the forged title documents which were mortgaged with the bank and later on siphoned off the funds and ultimately the account of firm turned NPA on 31.03.2004 with an outstanding amount to the tune of Rs. 340.65 lakhs. A8 K.B. Relan who was the Branch Head of PNB, NRB, New Delhi facilitated the commission of crime by taking the surety of impersonators without properly verifying their identity and by doing favourable things in the form of overdrawings and he failed to ensure the end use of the funds availed by the firm and which ultimately led to siphoning off funds by the borrower firm. A10 favourably recommended the proposal of M/s Gaaman Global Exports sent by the Branch. Further, A8 K.B. Relan & CC No. 06/12 & ID No. 64/19 Page 49 of 402 State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 A10 Anil Aggarwal obtained illegal gratification from M/s Gaaman Global Exports for their aforesaid illegal acts.
24. In these facts and circumstances, it would be necessary to find out who had opened the various accounts in the various banks including the Punjab National Bank, New Rohtak Road Branch, New Delhi and how the loan facilities were obtained and sanctioned. It is also to be seen whether the documents furnished by the borrower firm at the time of availing the loan facilities and enhancement thereof were forged documents and further that the funds obtained by the firm in the form of cash credit facilities and other facilities were siphoned off ?
OPENING OF CURRENT ACCOUNT BY M/S GAAMAN GLOBAL EXPORTS
25. The prosecution has alleged that A2 Mahan Mukherjee & A3 Rajendra S. Raikwar, both partners of M/s Gaaman Global Exports jointly got opened a current account bearing No. 5023 in Punjab National Bank, New Rohtak Road Branch, New Delhi, which was introduced by A8 K.B. Relan, the then Branch Manager in conspiracy with accused persons.
26. The prosecution in this regard has examined PW12 Sh. R.M. CC No. 06/12 & ID No. 64/19 Page 50 of 402 State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 Sachdeva who had worked as Manager in Punjab National Bank, New Rohtak Road Branch, New Delhi during the period from June 2002 to about June/July 2005. He deposed that at that time A8 K.B. Relan was the Branch Manager and R.L. Jain was the Officer (Loans) and R.P. Bansal was Manager (Loan). From June 2002 to October 2003, he was Hall Incharge and in October 2003, he was posted in Loan Section. PW12 has also deposed in respect of majority of documents of M/s Gaaman Global Exports and about the record seized from the Branch pertaining to the said firm by way of various seizure memos Ex.PW12/A to Ex.PW12/E & Ex.PW12/G which, inter alia, comprises account opening form, copies of partnership deed dated 02.04.1999, reconstituted deed of partnership dated 14.06.2000, supplementary partnership deed, agreements of guarantee, request for loan, process note, the documents executed and furnished by the borrower. PW12 has also been got examined to identify the signatures of officers or officials on those records, while dealing with the case of M/s Gaaman Global Exports.
26.1. Having seen the Account Opening Form in respect of M/s Gaaman Global Exports Ex.PW12/I, he deposed that vide this Account Opening Form, Account No. 5023 of M/s Gaaman Global Exports was opened in New Rohtak Road Branch of Punjab National Bank and the account was introduced by CC No. 06/12 & ID No. 64/19 Page 51 of 402 State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 accused K.B. Relan who also authorized the opening of the account. The authorized signatories were Mahan Mukherjee and Rajendra S. Raikwar. Having been worked with A8 K.B. Relan, PW12 has identified signatures of A8 K.B. Relan at points A and A1 on Ex.PW12/I. He has also identified signatures of A2 Mahan Mukherjee and A3 Rajendra S. Raikwar on all pages at points B and C respectively since they had been operating the account during his tenure. He further deposed that along with Account Opening form Ex. PW12/I, partnership deed dated 02.04.1999 of M/s Gaaman Global Exports Ex.PW12/J and Reconstitution Deed dated 14.06.2000 Ex. PW12/K were also attached and both the documents bear signatures of Mahan Mukherjee and Rajendra S. Raikwar on all the pages.
26.2. A2 Mahan Mukherjee and A3 Rajendra S. Raikwar have not disputed the above facts deposed by PW12 Sh. R.M Sachdeva either in the crossexamination of the witness or in their respective statement recorded under Section 313 Cr.P.C. Hence, it stands proved that vide Account Opening Form Ex.PW12/I, A2 Mahan Mukherjee & A3 Rajendra S. Raikwar, both partners of M/s Gaaman Global Exports jointly got opened a current account bearing No. 5023 in the name of their partnership firm M/s Gaaman Global Exports in Punjab National Bank, New Rohtak Road Branch, New Delhi. CC No. 06/12 & ID No. 64/19 Page 52 of 402
State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 PROPOSAL OF CASH CREDIT (HYPOTHECATION) LIMIT OF RS. 20 LAKHS BY M/S GAAMAN GLOBAL EXPORTS AND SANCTION OF THE SAME
27. The case of the prosecution is that A2 Mahan Mukherjee & A3 Rajendra S. Raikwar submitted a loan application dated 09.08.2001 on behalf of M/s Gaaman Global Exports for a cash credit facility of Rs. 20 lakhs to enhance their finance availability of their business of export of Basmati Rice principally to the Kingdom of Saudi Arabia. The said loan application was processed by Sh.R.P. Bansal, the then Manager (Advances) vide his note dated 06.09.2001 and a limit of Rs. 20 lakhs was sanctioned by A8 K.B. Relan on 07.09.2001. 27.1. PW12 Sh. R.M. Sachdeva, the then Manager, in this regard, has deposed that vide application dated 09.08.2001 Ex.PW12/M of M/s Gaaman Global Exports for Cash Credit limit of Rs. 20 Lakhs bearing signatures of Mahan Mukherjee and Rajendra S. Raikwar, loan was sought by the borrower for export of Basmati rice principally to the Kingdom of Saudi Arabia. He further deposed that process note dated 06.09.2001 Ex. PW12/N was prepared by Sh. R.P. Bansal, the then Manager (Advances) and the proposal was sanctioned by accused K.B. Relan for a CC (H) limit of Rs. 20 lakhs on 07.09.2001. The sanction order of accused K.B. Relan is in red ink at point B on CC No. 06/12 & ID No. 64/19 Page 53 of 402 State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 process note Ex.PW12/N. 27.2. PW12 Sh. R.M. Sachdeva has also identified the following documents submitted by A2 Mahan Mukherjee and A3 Rajendra S. Raikwar on behalf of M/s Gaaman Global Exports along with the loan application dated 09.08.2001 Ex.PW12/M:
1. Copy of Certificate of Importer : Ex.PW12/Q Exporter Code (IEC)
2. Copy of Rent Agreement dated : Ex.PW12/R 27.01.2000 3 Copy of Partnership deed dated : Ex.PW12/S. 02.04.1999 4 Copy of Reconstitution deed : Ex. PW12/T dated 14.06.2000
5. Copy of Supplementary : Ex.PW12/U Partnership Deed dated 28.12.2002
6. Copy of Rent Agreement dated : Ex.PW12/V 02.04.1999
7. Photocopy of passport of : Ex.PW12/W Rajendra S. Raikwar
8. Photocopy of another Rent : Ex.PW12/X Agreement dated 27.10.2001
9. Photocopy of an Agreement dated : Ex.PW12/Y 01.11.2001 CC No. 06/12 & ID No. 64/19 Page 54 of 402 State vs. Arvind Johri. & Ors Judgment dt.18.10.2022
10. Photocopy of another Rent : Ex.PW12/Z Agreement dated 01.11.2001
28. Another witness examined by the prosecution is PW32 Sh. Rajiv Kumar Mahajan who was posted as Clerk in loan section in New Rohtak Branch of Punjab National Bank during the period November 2002 to August 2008. He deposed on the similar lines as deposed by PW12 Sh. R.M. Sachdeva that the Loan Application Form Ex.PW12/M of M/s Gaaman Global Exports bears signature of Mahan Mukherjee and Rajendra S. Raikwar and that the process note dated 06.09.2001 Ex. PW12/N in respect of M/s Gaaman Global Exports was prepared by Sh. Bansal and it has been sanctioned by accused K.B. Relan on 07.09.2001. He also identified the signature of Sh. Bansal at point A and the endorsement as well as signatures of accused K.B. Relan regarding sanction at point B.
29. The prosecution has also examined Sh. R.P. Bansal, the then Manager (Advances) as PW44 who prepared the process note Ex.PW12/N. He while corroborating the statement of PW12 Sh. R.M. Sachdeva and PW32 Sh. Rajiv Kumar Mahajan deposed that he prepared the process note dated 06.09.2001 Ex.PW12/N and the proposal was sanctioned by accused K.B. Relan CC No. 06/12 & ID No. 64/19 Page 55 of 402 State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 whose signatures are at point A on Ex.PW12/N.
30. In the crossexamination of aforesaid prosecution witnesses, none of the accused persons have disputed the facts as deposed by them. These facts were otherwise also not in dispute in the respective statement of accused persons under Section 313 Cr.P.C. It is, therefore, proved that M/s Gaaman Global Exports through its partners A2 Mahan Mukherjee and A3 Rajendra S. Raikwar approached the New Rohtak Road Branch of Punjab National Bank vide application dated 19.08.2001 Ex.PW12/M for grant of Cash Credit (Hypothecation) limit for Rs. 20 lakhs. The said proposal of M/s Gaaman Global Exports was processed vide process note dated 06.09.2001 Ex.PW12/N by Sh. R.P. Bansal, the then Manager (Advances) and sanctioned by A8 K.B. Relan, the then Branch Incharge on 07.09.2001 vide his endorsement on process note Ex.PW12/N. It also stands proved that along with the application Ex.PW12/M, the documents as detailed by PW12 Sh. R.M. Sachdeva were also submitted by M/s Gaaman Global Exports through its partners.
SUBMISSION OF FORGED TITLE DOCUMENTS IN RESPECT OF PROPERTY BEARING NO. 208, OLD GUPTA COLONY, VIJAY NAGAR, NEW DELHI OWNED BY SMT. RAM RAKHI AND EXECUTION OF FORGED GUARANTEE DOCUMENTS BY IMPERSONATOR CC No. 06/12 & ID No. 64/19 Page 56 of 402 State vs. Arvind Johri. & Ors Judgment dt.18.10.2022
31. As per case of the prosecution, M/s Gaaman Global Exports was sanctioned CC (H) of Rs. 20 lakhs by A8 K.B. Relan, the then Branch Manager against primary security of hypothecation of the stock of rice and a collateral security of property No. 208, Old Gupta Colony, Vijay Nagar, Delhi owned by one Smt. Ram Rakhi.
31.1. In this regard, PW12 Sh. R.M. Sachdeva has deposed that there were both primary security as well as collateral security in the loan proposal sanctioned by A8 K.B. Relan. The primary security was stock of rice and collateral security was immovable property i.e. M97, Gupta Colony (218), Delhi09 belonging to Smt. Ram Rakhi. He also deposed that vide letter dated 07.09.2001 Ex.PW5/E, Smt. Ram Rakhi had offered her property to the bank for equitable mortgage and vide this letter Ex.PW5/E, Sale Deed dated 01.09.1964 Ex.PW5/B was also submitted to the bank. There is no dispute to the said fact by A2 Mahan Mukherjee, A3 Rajendra S. Raikwar, both partners of M/s Gaaman Global Exports and A8 K.B. Relan, the then Branch Manager. 31.2. PW12 Sh. R.M. Sachdeva has also identified the loan documents executed by A2 Mahan Mukherjee and A3 Rajendra S. Raikwar on behalf of M/s Gaaman Global Exports as borrower and the guarantee documents CC No. 06/12 & ID No. 64/19 Page 57 of 402 State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 purported to be executed/submitted by the guarantor Smt. Ram Rakhi pursuant to sanction of CC (H) limit of Rs. 20 lakhs which are as under:
1. Undertaking dated 07.09.2001given by the : Ex.PW12/O. partners of M/s Gaaman Global Exports to the Manager, PNB, New Rohtak Road Branch bearing signatures of Mahan Mukherjee and Rajendra S. Raikwar
2. Agreement dated 07.09.2001 for loan/cash : Ex.PW23/A credit/overdraft for Rs.20 lakhs executed on behalf of M/s Gaaman Global Exports by Mahan Mukherjee and Rajendra S. Raikwar and on behalf of the bank by Sh.
Ashok Kumar, Staff member and accused K.B. Relan
3. Hypothecation of goods and book of debts : Ex.PW23/B. to secure cash credit facility dated 07.09.2001 bearing signatures of Mahan Mukherjee and Rajendra S. Raikwar and signed by Sh. Ashok Kumar and K.B. Relan as witnesses
4. Agreement of guarantee dated 07.09.2001 : Ex.PW23/C. executed by Mahan Mukherjee and Rajendra S. Raikwar for cash credit limit of Rs. 20 lakhs which was signed by R.P. CC No. 06/12 & ID No. 64/19 Page 58 of 402 State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 Bansal and Sh. Ashok Ramchandani as witnesses
5. Declaration cum affidavit dated : Ex.PW5/K 10.08.2001 purportedly executed by Smt. Ram Rakhi
6. Agreement of guarantee dated 07.09.2001 : Ex.PW5/L. purportedly executed by Smt. Ram Rakhi
32. PW23 Sh. Ashok Ramchandani, the Clerk posted in loan section in New Rohtak Road Branch from 1998 till 2004 and one of the witnesses to the loan documents executed between the bank and M/s Gaaman Global Exports, has also deposed that Agreement for Loan/Cash Credit/Overdraft dated 07.09.2001 Ex.PW23/A, Hypothecation of Goods and Book of Debts to secure cash credit facility dated 07.09.2001 Ex.PW23/B and Agreement of Guarantee dated 07.09.2001 Ex.PW23/C were executed between M/s Gaaman Global Exports and the bank in his presence and he signed the said documents as a witness. He has also identified the signatures of A8 K.B. Relan, Mahan Mukherjee and Rajendra S. Raikwar on the said documents.
33. Execution of aforesaid loan documents pursuant to sanction of CC (H) limit of Rs. 20 lakhs has not been disputed by the concerned accused persons. The prosecution, however, has alleged that Sale Deed dated 01.09.1964 CC No. 06/12 & ID No. 64/19 Page 59 of 402 State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 Ex.PW5/B of the aforesaid property submitted by M/s Gaaman Global Exports was later found to be a forged document. It is also alleged that Smt. Ram Rakhi, the owner of the aforesaid property never stood guarantor for M/s Gaaman Global Exports in the year 2001 as she had already expired in the year 1990 and the partners of M/s Gaaman Global Exports in criminal conspiracy with other accused persons produced a lady in the bank on 07.09.2001 pursuant to sanction of CC (H) of Rs. 20 lakhs, who executed the loan documents as a guarantor by impersonating herself as "Ram Rakhi".
34. In order to prove its case, the prosecution has examined PW5 Sh. Rajesh Kumar, grandson of Smt. Ram Rakhi. He deposed about genealogical tree of the family. Late Sh. Lakhmi Dass was his grandfather and Smt. Ram Rakhi was his grandmother who expired on 28.07.1990. He produced the copy of death certificate of Smt. Ram Rakhi which is Ex.PW5/A. Smt. Ram Rakhi had two sons namely Sh. Ram Lubhaya and Sh. Bodh Raj (since dead, died in 1970). Sh. Ram Lubhaya had two sons and two daughters; PW5 Rajesh Kumar is one of them. Sh. Bodh Raj had three sons, namely, Joginder Pal, Gulshan Kumar, Rakesh Kumar (all of them have expired) and a daughter Anita. PW18 Smt. Neelam Gulati is widow of Joginder Pal and PW19 Virender Kumar Gulati is brotherinlaw of PW18 Smt. Neelam Gulati. CC No. 06/12 & ID No. 64/19 Page 60 of 402
State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 34.1. PW5 deposed that property bearing House No. 208, Old Gupta Colony was purchased in the name of his grandmother Smt. Ram Rakhi; the property was divided between Sh. Ram Lubhaya, being one branch and sons of Bodh Raj, being another branch. The portion came to sons of Bodh Raj had been sold by them, however, the portion came to Sh. Ram Lubhaya is still with his successors, which includes PW5. He further deposed that the original Sale Deed of the above property in the name of Smt. Ram Rakhi was with him and the same was deposited with DRT in the year 2005.
34.2. Having seen the Sale Deed Ex. PW5/B purportedly executed in the name of Smt. Ram Rakhi on 01.09.1964, PW5 Sh. Rajesh Kumar stated that it is not the original Sale Deed which was executed in the name of his grandmother Smt. Ram Rakhi. He further stated that the signatures at points Q410, Q412, Q414 & Q416 purported to be of Smt. Ram Rakhi are not the signatures of Smt. Ram Rakhi and he opined that the said Sale Deed Ex. PW5/B is forged. He was further confronted with the signatures purported to be of Smt. Ram Rakhi at points A, A1 & A2 on Indemnity bond Ex.PW5/C, which he denied to be of Smt. Ram Rakhi. He deposed that the photograph pasted on the first page of the indemnity bond at point B is not of his grandmother Smt. Ram Rakhi. Similarly, having seen the photograph on ration card Ex.PW5/D CC No. 06/12 & ID No. 64/19 Page 61 of 402 State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 purported to be in the name of Smt. Ram Rakhi, he stated that the same is not of his grandmother Smt. Ram Rakhi. He denied the signatures of his grandmother Smt. Ram Rakhi at point A on the letters dated 07.09.2001 Ex.PW5/E and 09.09.2001 Ex.PW5/F purported to be written by Smt. Ram Rakhi to the Branch Manager, PNB, Branch Office New Rohtak Road. Having seen letter of continuity dated 08.03.2002 Ex.PW5/G, letter of continuity dated 19.08.2002 Ex.PW5/H, letter of continuity dated 14.02.2003 Ex.PW5/I, letter of continuity dated 17.03.2003 Ex.PW5/J, purportedly written by Smt. Ram Rakhi to the Senior Manager, PNB, NRB, he has denied the signatures of his grandmother Smt.Ram Rakhi at point A on each document. He further deposed that the Declaration cum Affidavit dated 10.08.2001 Ex.PW5/K and Agreement of Guarantee dated 07.09.2001 Ex.PW5/L purportedly executed by Smt. Ram Rakhi do not bear the signatures of his grandmother Smt. Ram Rakhi. The photographs at point B on first page of these documents are not of his grandmother Smt. Ram Rakhi.
34.3. He was shown agreement of guarantee dated 14.08.2002 purportedly executed by one Smt. Ram Rakhi and one Smt. Shanti Devi and the same is Ex.PW2/J. He denied signatures of his grandmother Smt. Ram Rakhi at points B, B1 to B9 on this document and her photograph at point C on the first page of CC No. 06/12 & ID No. 64/19 Page 62 of 402 State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 this document. He was shown agreement of guarantee dated 08.02.2003 purportedly executed by one Smt. Ram Rakhi and one Smt. Shanti Devi and the same is Ex.PW2/K. He denied signatures of his grandmother Smt. Ram Rakhi at points Q153, Q154, Q157, Q158, Q160 and Q163 and at points B, B1 to B 8 on this document. Likewise, having seen the agreement of guarantee dated 15.03.2003 Ex.PW5/M purportedly executed by Smt. Ram Rakhi, he denied the signatures of his grandmother at points A, A1 to A15 on this document. Having seen another agreement of guarantee dated 08.03.2002 Ex.PW5/N purportedly executed by Smt. Ram Rakhi, he denied the signatures of his grandmother at points A, A1 to A8 on this document.
34.4. He deposed that all the above documents which do not bear signatures/photographs of his grandmother Smt. Ram Rakhi are forged as his grandmother had died on 28.07.1990 and no document could have been executed by her after her death. He further deposed that he has not taken any loan from any bank against the property bearing No. 208, Old Gupta Colony. PW5 was confronted with certified true copy of Sale Deed dated 01.09.1964 Ex.PW5/O by Sh. Gopi Chand as vendor in favour of Smt. Ram Rakhi as vendee of property measuring 260 sq. yards situated in residential colony known as Gupta colony in the area of village Rajpur Chawani, Civil Line Zone, Delhi CC No. 06/12 & ID No. 64/19 Page 63 of 402 State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 (Ex. PW5/O) to ascertain about the signature of his grandmother Smt. Ram Rakhi, PW5 had confirmed her signatures at PointsA2, A4, A7 and A8 on the Sale Deed Ex. PW5/O. 34.5. This witness PW5 Sh. Rajesh Kumar was crossexamined only on behalf of A2 Mahan Mukherjee to explore information about the relatives, knowledge about other cases as well as to challenge his testimony by imputing against him that the documents in respect of property no. N154, Greater Kailash, Part1, New Delhi were forged by him and others or he withheld certain information intentionally.
34.6. It is surprising to note that the major part of crossexamination of the witness was centred around the Relinquishment Deed dated 19.06.2001 Ex.PW2/B in respect of some other property bearing No. N154, Greater Kailash, PartI, New Delhi about which witness had no knowledge. The witness admitted that Smt. Neelam Gulati is the wife of his cousin Sh. Joginder Pal. He was shown Relinquishment Deed dated 19.06.2001 Ex.PW2/B and he stated that the first page of Relinquishment Deed Ex.PW2/B bears two photographs of two women, however neither of these photographs is of Smt. Neelam Gulati. He could not say whether Ex.PW2/B bears signatures of Sh. Virender Gaba or not because he has never seen signatures of Sh. Virender Gaba. He denied the CC No. 06/12 & ID No. 64/19 Page 64 of 402 State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 suggestion that in his statement to CBI after seeing the Relinquishment Deed Ex. PW2/B, he had stated that it has the photograph of Smt. Neelam Gulati. He was confronted with his statement under Section 161 Cr.P.C. wherein he stated that on this deed photograph of Smt. Neelam Gulati is affixed at point A to A1. The statement is Ex. PW5/D1 and he stated that he has not given above quoted statement to CBI.
34.7. He was confronted with the document Ex.PW2/O and he stated that Ex.PW2/O bears photograph of Smt. Neelam Gulati at point B. He did not remember whether he had told CBI that the Relinquishment Deed in respect of property No. N154, Greater Kailash, PartI bears signatures of Sh. Virender Kumar Gauba. The witness was confronted with his statement Ex.PW5/D1 wherein it was so recorded at point B to B1. He denied the suggestion that he along with property agents and Smt. Neelam Gulati had filed forged documents in respect of property No. 208, Old Gupta Colony. He further denied the suggestion that they had forged documents in respect of property No. N154, Greater Kailash, PartI, New Delhi.
34.8. From the aforesaid crossexamination of the witness, it is clear that nothing material could be extracted by Ld. Defence Counsel to impeach his testimony. The death certificate of Smt. Ram Rakhi Ex.PW5/A was not CC No. 06/12 & ID No. 64/19 Page 65 of 402 State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 challenged by A2 Mahan Mukherjee at all. The death certificate Ex.PW5/A also could not be assailed by other accused persons as they chose not to cross examine the witness. In view of the same, the death certificate Ex.PW5/A duly stands proved and it is established on record vide Ex.PW5/A that Smt. Ram Rakhi had expired on 28.07.1990. Smt. Ram Rakhi, therefore, could not have mortgaged her property and stood guarantor against the loan availed by M/s Gaaman Global Exports in the year 2001 or subsequent loan availed by the said firm when she had already expired in the year 1990. It goes to show that all the guarantee and other documents purported to be executed/written by Smt. Ram Rakhi in the year 2001 do not bear her signatures and someone has forged her signatures on these documents. PW5 Sh. Rajesh Kumar though was suggested that he along with property agents and Smt. Neelam Gulati had filed the forged documents in respect of the property owned by Smt. Ram Rakhi which he denied, but no evidence has been led by A2 Mahan Mukherjee to show that forged documents had been filed by this witness. From this suggestion put to the witness, it is apparent that A2 himself has admitted the documents to be forged one including the Sale Deed Ex.PW5/B. The deposition of the witness that Ex.PW5/O is the true certified copy of the original Sale Deed and the ration card Ex.PW5/D does not bear the photograph of Smt. Ram Rakhi has remained CC No. 06/12 & ID No. 64/19 Page 66 of 402 State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 unchallenged.
35. The aforesaid testimony of PW5 Sh. Rajesh Kumar is corroborated by PW18 Smt. Neelam Gulati who has been examined on the pattern of PW5 with regard to property no. 208, Old Gupta Colony, Near Vijay Nagar, Delhi9 as well as family of Smt. Ram Rakhi vis a vis PW18 is wife of Sh. Joginder Pal (since deceased) who was one of the son of Sh. Bodh Raj (since deceased). She deposed that Smt. Ram Rakhi was the owner of the property No. 208, Old Gupta Colony, near Vijay Nagar, Delhi110009 who had two sons, namely, Bodh Raj Gulati and Sh. Raj Kumar Gulati. She further deposed that after the death of Smt. Ram Rakhi, half portion of the property went to her son Raj Kumar Gulati and the remaining half portion went to three sons of Bodh Raj Gulati, namely, Joginder Pal Gulati, Gulshan Kumar Gulati and Rakesh Kumar Gulati. She further deposed that the aforesaid property was never mortgaged with any bank for taking loan and the title documents of the property were with Raj Kumar Gulati and they are having a photocopy of the same which is Mark PW18/1. She was shown various documents to ascertain whether those documents were bearing signature of Smt. Ram Rakhi or bore her photograph. 35.1. Having seen the Sale Deed Ex.PW5/B, PW18 Smt. Neelam Gulati stated that it does not bear signatures of Smt. Ram Rakhi at points Q410, CC No. 06/12 & ID No. 64/19 Page 67 of 402 State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 Q412, Q414, Q416. Similarly, having seen the Indemnity Bond Ex.PW5/C, she stated that the photograph pasted on the first page of indemnity bond Ex.PW5/C at point B is not of Smt. Ram Rakhi and the same does not bear signatures of Smt. Ram Rakhi at points A, A1 and A2. She was further shown photocopy of ration card Ex.PW5/D and she stated that photograph at point A is not of Smt. Ram Rakhi. She denied the signatures of Smt. Ram Rakhi on letter dated 07.09.2001 Ex.PW5/E and letter dated 09.09.2001 Ex.PW5/F. She further denied the signatures and photograph of Smt. Shanti Devi on Declaration cum Affidavit Ex.PW5/K and Agreement of Guarantee Ex.PW5/L. Likewise, she denied the signatures of Smt. Ram Rakhi on Agreement of guarantee Ex.PW2/J, Ex. PW2/K and PW5/M. 35.2. This witness was though crossexamined at depth on behalf of A5 Anil Mahajan, but that crossexamination was not with regard to property owned by Smt.Ram Rakhi and the documents confronted to the witness and, thus, not relevant at this stage to be discussed. PW18 was crossexamined only on behalf of A8 K.B. Relan in respect of property bearing A208, Old Gupta Colony, Vijay Nagar, Delhi of Smt.Ram Rakhi. In her said crossexamination, PW18 Smt. Neelam Gulati stated that in House No. 208, Old Gupta colony, the ladies who were residing besides her were Smt. Swarna Rani, her motherinlaw, Smt. CC No. 06/12 & ID No. 64/19 Page 68 of 402 State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 Geeta Gulati, her Devrani, Smt. Kamlesh Rani, Chachi of her husband and Smt. Kanta, wife of Sh. Rajesh Gulati. She denied the suggestion that on 10 th and 11th July 2001, one Sh. K.K. Sharma, Advocate on the panel of Punjab National Bank came to her house or that she offered him tea, cold drink and biscuits. She further denied the suggestion that on 12th July, 2001, one Sh.V.D. Gandotra, Approved Valuer, came to her house or that she showed him the entire property. She further denied the suggestion that Sh. K.K. Sharma or Sh.V.D. Gandotra prepared site plan/sketch of the entire property while sitting in their house. She further denied the suggestion that on 05.09.2001, Sh. R.P.Bansal, Manager, Punjab National Bank came to her house or that she showed him their house. She further denied the suggestion that Sh.K.K. Sharma came to her house on 14.07.2001 or that one lady named Ram Rakhi called Neelam Gulati or that she came out. She further denied the suggestion that if she had not met Sh. K.K. Sharma, some other lady from her house had met him as Neelam Gulati. 35.3. As such, there is nothing in the crossexamination of this witness to disbelieve her version. The testimony of PW18 Smt. Neelam Gulati on the material aspects that Smt. Ram Rakhi had never mortgaged her property with the bank for any loan and further that the documents put to her purported to be executed/written by Smt.Ram Rakhi including the Sale Deed Ex.PW5/B neither CC No. 06/12 & ID No. 64/19 Page 69 of 402 State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 bore signatures of Smt. Ram Rakhi nor her photograph could be assailed by Ld. Counsel for A8.
36. Another witness examined by the prosecution is PW13 Sh. S.M. Jain who was posted as Assistant Archivist in Department of Delhi Archives, Govt. of NCT of Delhi in the year 2004. Upon seeing the certified copy of Sale Deed dated 01.09.1964 Ex.PW5/O executed by Sh. Gopi Chand in favour of Smt. Ram Rakhi, he deposed that he handed over the same to the CBI during investigation after getting the photostate copy certified by the Sub Registrar, Sub Division No. 1, Delhi.
36.1. The deposition of this witness that Ex.PW5/O is the certified copy of original Sale Deed dated 01.09.1964 executed by Sh. Gopi Chand in favour of Smt. Ram Rakhi could not be challenged as this witness was not crossexamined by any of the accused persons.
37. The prosecution has also examined PW14 Sh. Dinesh Kumar Gondyan who was working as Sub RegistrarI, Kashmere Gate, Delhi in the year 2007 and also joined the investigation/inquiry by CBI in respect of two sale deeds both dated 01.09.1964 Ex. PW5/O and Ex. PW5/B pertaining to property comprising khasra no. 792/598/367, measuring 260 sq. yards situated in Gupta Colony, VillageRajpur Chhawani, Civil Lines Zone which was sold by CC No. 06/12 & ID No. 64/19 Page 70 of 402 State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 Sh. Gopi Chand to Smt. Ram Rakhi.
37.1. He was got compared the aforementioned two Sale Deeds Ex.PW/B and Ex.PW5/O and after comparing the two documents he pointed out the differences in the two documents as follows: the font of the two documents is different; there are several overwriting in page No. 2, 3 and 4 of Ex.PW5/B, however such overwriting are not there in Ex.PW5/O; on the back side of page No. 2 of Ex.PW5/B; signature of Sub Registrar appears to be different from those on the corresponding page of Ex.PW5/O; there is one spelling mistake in the word "Thirteen" on page No. 2 of Ex.PW5/B, which is not there on the corresponding page of Ex.PW5/O. On the basis of comparison of the two documents, the witness came to the conclusion that Ex.PW5/B is not a true copy of original Sale Deed Ex.PW5/O. 37.2. This witness was subjected to crossexamination by A2 Mahan Mukherjee and A8 K.B. Relan and his entire crossexamination by both the accused persons was all about the process for registration of documents in the Sub Registrar Office and obtaining certified copy of registered sale deed from the Sub Registrar Office as well as about the sale deeds and the subject property, either from the point of view of territorial jurisdiction or stamp duty as well as the prevailing situation in the year 1964 whether photocopiers were in practice CC No. 06/12 & ID No. 64/19 Page 71 of 402 State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 or not or mode of typing or handwriting was the option vis a vis sale deed can be obtained by any person. The statement of this witness that Sale Deed Ex.PW5/B is not a true copy of original Sale Deed Ex.PW5/O on the basis of comparison of two documents could not be impeached by both the accused persons.
38. The prosecution, thus, from the testimony of above witnesses has successfully proved on record that Smt. Ram Rakhi, the owner of property bearing No. A208, Old Gupta Colony, Vijay Nagar, Delhi had never mortgaged her property with Punjab National Bank, New Rohtak Road Branch, New Delhi against the credit facility of Rs. 20 lakhs availed by M/s Gaaman Global Exports in the year 2001 as she had already died on 28.07.1990 vide death certificate Ex.PW5/A and could not have stood guarantor in the year 2001. It also stands proved that the Sale Deed Ex.PW5/B in respect of aforesaid property of Smt. Ram Rakhi submitted by A2 Mahan Mukherjee and A3 Rajendra S. Raikwar being partners of M/s Gaaman Global Exports at the time of availing CC (H) Limit for Rs. 20 lakhs is a forged document and Ex.PW5/O is the true certified copy of the original Sale Deed dated 01.09.1964 executed in the name of Smt. Ram Rakhi by Sh. Gopi Chand. The ration card purported to be in the name of Smt. Ram Rakhi Ex.PW5/D submitted as address proof does not bear her photograph as deposed by PW5 Sh. Rajesh Kumar and PW18 Smt. Neelam CC No. 06/12 & ID No. 64/19 Page 72 of 402 State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 Gulati whose testimony could not be impeached by any of the accused persons as discussed hereinabove and hence the ration card Ex.PW5/B is also proved to be a forged document. Likewise, all the guarantee documents/letters purported to be executed/written by Smt. Ram Rakhi in the year 2001 as a guarantor i.e. indemnity bond Ex.PW5/C, letter dated 07.09.2001 Ex.PW5/E, letter dated 09.09.2001 Ex.PW5/F, Declaration cum Affidavit Ex.PW5/K and Agreement of Guarantee Ex.PW5/L could not have been written or signed by Smt. Ram Rakhi in the year 2001 when she had already died in the year 1990 and apparently someone has forged the signatures of Smt. Ram Rakhi on these documents and hence all these documents stand proved to be forged.
39. As regards the execution of above guarantee documents by impersonator as claimed by the prosecution, the Agreement of Guarantee Ex.PW5/L is shown to have been executed by Smt. Ram Rakhi on 07.09.2001 in the bank in the presence of bank officials pursuant to sanction of CC (H) limit of Rs. 20 lakhs to M/s Gaaman Global Exports. In this regard, PW23 Sh. Ashok Ramchandani, the bank official/clerk and one of the witnesses to the said document has stated in his crossexamination that the said document was signed by Smt. Ram Rakhi in his presence. However, since Smt. Ram Raki had died in the year 1990, she could not have appeared in person in the bank on 07.09.2001 CC No. 06/12 & ID No. 64/19 Page 73 of 402 State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 to execute the document. It goes to show that some lady had appeared in the bank on 07.09.2001, impersonated herself as "Ram Rakhi" and executed this document Ex.PW5/L in the presence of bank officials and it strengthens the case of the prosecution that all the guarantee documents purported to be executed by Smt. Ram Rakhi were executed/signed by some impersonator. Though, the prosecution has not been able to show as to who was the impersonator who had signed all these documents/letters while impersonating herself as "Ram Rakhi"
as a guarantor against the loan availed by M/s Gaaman Global Exports in the year 2001.
PROPOSAL FOR ENHANCEMENT OF CASH CREDIT (H) OF RS. 20 LAKHS TO RS. 100 LAKHS AND SANCTION OF THE SAME.
40. The case of the prosecution is that M/s Gaaman Global Exports through its CEO A1 Arvind Johri (since deceased) submitted a request/proposal vide letter dated 12.12.2001 for enhancement of CC (H) Limit of Rs. 20 lakhs to Rs. 100 lakhs, Book Debts limit of Rs. 15 lakhs and Non fund based limit of Rs. 50 lakhs. A8 K.B. Relan in conspiracy with other accused persons processed/recommended the said proposal and submitted the same to Senior Regional Manager on 18.01.2002 for its sanction. Sh. S.K.Marwah, the then CC No. 06/12 & ID No. 64/19 Page 74 of 402 State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 Regional Manager, Punjab National Bank sanctioned the credit facilities to A12 M/s Gaaman Global Exports on 07.03.2002 as follows: (i) CC (H) limit for Rs. 65 lakhs, (ii) CC (Book debt) of Rs. 15 lakhs (Overall Ceiling 65 lakhs), (iii) ILC of Rs. 30 lakhs & (iv) Bank Guarantee limit of Rs. 5 lakhs.
41. In this regard, PW12 Sh. R.M. Sachdeva, the then Manager at New Rohtak Road Branch of Punjab National Bank, after seeing the file (D3) Ex.PW12/C stated that the file contains, inter alia, a letter dated 12.12.2001 Ex.PW12/EE written by Arvind Johri to Punjab National Bank, New Rohtak Road Branch vide which they had requested for enhancement of the limit. He further deposed that accused K.B. Relan endorsed the same and marked the letter to Sh. Parashar. Having seen the file Ex.PW12/C (Colly), the witness further deposed that there is a letter dated 18.01.2002 written by accused K.B. Relan to the Senior Regional Manager regarding enhancement proposal of M/s Gaaman Global Exports. The letter alongwith list of enclosures is Ex.PW12/HH. He further deposed that accused Anil Aggarwal vide letter dated 07.03.2002 informed about enhancement of limits to Senior manager, Punjab National Bank, New Rohtak Branch, New Delhi. Photocopy of terms and conditions were also attached with the said letter. The letter alongwith the terms and conditions is Ex.PW12/RR (Colly). He further deposed that accused K.B. Relan vide letter CC No. 06/12 & ID No. 64/19 Page 75 of 402 State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 dated 08.03.2002 Ex.PW12/SS conveyed the enhancement of limits to M/s Gaaman Global Exports and asked the party for acceptance of the same. The said letter bears endorsement of accused Mahan Mukherjee regarding acceptance of terms and conditions at point B. Sh. Parashar, Officer, Punjab National Bank, New Rohtak Road Branch vide letter Ex.PW12/TT conveyed the terms and conditions on increase of limits to M/s Gaaman Global Exports.
42. PW32 Sh. Rajiv Kumar Mahajan who was posted as Clerk in NRB of PNB during the relevant time has also deposed that proposal dated 12.12.2001 for enhancement of loan Ex. PW32/A in file (D4) Ex.PW12/FF (Colly) bears signatures of accused Arvind Johri.
43. PW31 Sh. Vinay Kapoor who was posted as Chief Manager, PNB, North Delhi Regional Office from 2001 to 2004 has also deposed that they had received proposal from New Rohtak Road Branch of Punjab National Bank regarding sanction of credit facilities to M/s Gaaman Global Exports and he had dealt with the said proposal. He dealt with file Ex.PW31/A (Colly) maintained in the Regional Office relating to M/s Gaaman Global Exports. He deposed that letter dated 18.01.2002 Ex.PW31/B (Colly) was written to Senior Regional Manager regarding enhancement proposal of M/s Gaaman Global Exports bearing signature of accused K.B. Relan. The proposal and its enclosures sent CC No. 06/12 & ID No. 64/19 Page 76 of 402 State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 vide letter Ex.PW31/B (Colly) is Ex.PW31/C (Colly) bearing signature of accused K.B. Relan. He further deposed that process note dated 07.03.2002 of Regional Office with respect to the aforesaid loan proposal is Ex.PW31/O. The note has been processed by Sh. S.S. Chhabra and accused Anil Aggarwal. The same has been endorsed by him wherein certain loan facilities were sanctioned by Senior Regional Manager Sh. S.K Marwah. He further deposed that the letter dated 07.03.2002 written by Senior Manager (Credit), Regional Office to Sr. Manager, New Rohtak Road Branch conveying the sanction of the credit facilities, along with terms and conditions is Ex. PW31/P (Colly).
44. PW37 Sh. S.S. Chhabra who was posted as Manager, PNB, North Delhi Circle, Rajendra Place, New Delhi from January 2001 till April 2013 has deposed that earlier this office was also known as NorthDelhi Regional Office. In the year 2002, they had received a proposal for loan in respect of M/s Gaaman Global Export from New Rohtak Road Branch of PNB. At that time, K.B. Relan was the Branch Manager of New Rohtak Road Branch and he was Desk Officer in the Regional Office and had dealt with the said proposal. He deposed that Ex.PW31/A (Colly) is file of Regional Office and pertains to M/s Gaaman Global Export. Proposal from branch office, New Rohtak Road Branch was received vide letter dated 18.01.2002 Ex.PW31/B of the Senior Manager. CC No. 06/12 & ID No. 64/19 Page 77 of 402
State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 Along with this letter, proposal Ex.PW31/C (Colly) was received by Anil Aggarwal, Senior Manager. Accused Anil Aggarwal was the Functional head i.e. Incharge of Credit Section which was marked by him to this witness. He had processed the said proposal. He found certain deficiencies in the proposal and he raised certain queries. He further deposed that the proposal was for enhancement of CC limit of Rs. 20 lakhs to Rs. 1 crore, book debt for Rs. 15 lakhs, ILC for Rs. 50 lakhs and bank guarantee of Rs. 5 lakhs and they have processed the proposal vide process note Ex. PW31/O which bears signature of this witness at point A, signatures of accused Anil Aggarwal at point B and signature of Sh. Vinay Kapoor at point C. The proposal was sanctioned by Sh. S.K. Marwah, Senior Regional Manager whose endorsement is at point D. The proposal was sanctioned on 07.03.2002 for CC limit of Rs. 65 lakhs, book debt of Rs. 15 lakhs with a ceiling of Rs. 65 lakhs, ILCDA/DP of Rs. 30 lakhs and bank guarantee of Rs. 5 lakhs. The sanction was conveyed to the Branch vide letter dated 07.03.2002 Ex. PW31/P. It bears signatures of Sh. Anil Aggarwal at point A and his initials at point B.
45. These facts as deposed by aforesaid prosecution witnesses have not been disputed by the accused person in their crossexamination, which were otherwise also not in dispute. Hence, it stands proved that M/s Gaaman Global CC No. 06/12 & ID No. 64/19 Page 78 of 402 State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 Exports through its CEO A1 Arvind Johri (since deceased) vide letter dated 12.12.2001 Ex.12/EE [also Ex.PW32/A in file Ex.PW12/FF (Colly) of M/s Gaaman Global Exports maintained in PNB, NRB] requested the PNB, NRB for enhancement of CC (H) limit of Rs. 20 lakhs to Rs.100 lakhs, Book Debts for Rs. 15 lakhs and Non fund based (for bank guarantees and Inland letter of Credit) for Rs. 50 lakhs. Pursuant to the aforesaid request, gist of proposal Ex.PW31/C (Colly) was prepared by A8 K.B. Relan being Branch Manager and he recommended and sent the proposal Ex.PW31/C (Colly) to the Senior Regional Manager vide letter dated 18.01.2002 Ex.12/HH [also Ex.PW31/B (Colly) in file Ex.PW31/A (Colly) maintained in Regional Office pertaining to M/s Gaaman Global Exports] for sanction. The loan proposal Ex.PW31/C was processed by A10 Anil Aggarwal, the then Senior Manager (Credit), PW37 Sh.S.S. Chhara, the then Manager and PW31 Sh.Vinay Kapoor, the then Chief Manager at the Regional Office vide process note dated 07.03.2002 Ex.PW31/O. The loan proposal was sanctioned by Sh.S.K. Marwah, the then Senior Regional Manager on 07.03.2002 vide his endorsement at point D on the process note Ex.31/O for CC (H) limit of Rs. 65 lakhs, Book Debt of Rs.15 lakhs with a ceiling of Rs. 65 lakhs, ILCDA/DP of Rs. 30 lakhs and Bank Guarantee of Rs. 5 lakhs.
CC No. 06/12 & ID No. 64/19 Page 79 of 402
State vs. Arvind Johri. & Ors Judgment dt.18.10.2022
46. It has also come from the testimony of aforesaid prosecution witnesses that sanction of the proposal was conveyed by the Regional Office to the Branch Office vide letter dated 07.03.2002 Ex.PW12/RR [also Ex.PW31/P in file Ex.PW31/A (Colly)] which was further conveyed by the Branch Office to M/s Gaaman Global Exports vide letter dated 08.03.2002 Ex.PW12/SS. SUBMISSION OF FORGED TITLE DOCUMENT IN RESPECT OF PROPERTY BEARING NO. N154, GREATER KAILASH, PARTI, NEW DELHI REGISTERED IN THE NAME OF SMT. SHANTI DEVI AND EXECUTION OF FORGED GUARANTEE DOCUMENTS BY IMPERSONATORS
47. As per the case of the prosecution, the firm M/s Gaaman Global Exports while availing enhancement of CC (H) limit of Rs. 20 lakhs to Rs. 100 lakhs which was sanctioned for Rs.65 lakhs, had offered equitable mortgage of another property bearing No. N154, Greater Kailash, PartI, New Delhi owned by Smt. Shanti Devi as collateral security in addition to the existing property bearing No. A208, Old Gupta Colony, Vijay Nagar, Delhi owned by Smt. Ram Rakhi.
48. In this context, PW32 Sh. Rajiv Kumar Mahajan has deposed that CC No. 06/12 & ID No. 64/19 Page 80 of 402 State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 vide letter dated 09.01.2002 Ex.PW12/GG of M/s Gaaman Global Exports bearing signature of accused Arvind Johri, the party, inter alia, had offered collateral security of property bearing No. N154, GK PartI, New Delhi. He further deposed that gist of proposal Ex.PW31/C (Colly) was sent to Regional Office by accused K.B. Relan vide letter dated 18.01.2002 Ex.PW31/B. As per this proposal, the properties offered as collateral securities were 208, Old Gupta Colony, Vijay Nagar, New Delhi of Smt. Ram Rakhi and N154, GK PartI, New Delhi of Smt. Shanti Devi.
49. There is no dispute by the accused persons to the fact that the aforesaid two properties were offered as collateral security by M/s Gaaman Global Exports while availing enhancement of CC (H) limit of Rs. 20 lakhs to Rs. 65 lakhs.
50. The sanction letter of Regional Office dated 07.03.2002 Ex.PW12/RR [also Ex.PW31/P in file Ex.PW31/A (Colly)], contains the terms and conditions to be complied by the Branch and the borrower and it, inter alia, stipulates that the limits shall be further secured by the guarantees of (1) Smt. Ram Rakhi, (2) Smt. Shanti Devi, (3) Arvind Johri, (4) Smt. Shefali Mukherjee & (5) Sh. A. Banerjee. Pursuant to the same, various loan documents were executed on 08.03.2002 by the borrower and the guarantors.
CC No. 06/12 & ID No. 64/19 Page 81 of 402
State vs. Arvind Johri. & Ors Judgment dt.18.10.2022
51. PW12 Sh.R.M. Sachdeva deposed that Agreement of Guarantee dated 08.03.2002 Ex.PW17/B was executed by accused Arvind Johri which was also signed by Sh. Parashar and Sh. Ashok Ramchandani; Agreement of Guarantee executed by Smt. Shanti Devi is Ex. PW17/C and the same was also signed by Sh.Dinesh Kumar Kaushsik, Sh. Parashar and Sh. Ashok Kumar Ramchandani and Agreement of Guarantee executed by Smt. Ram Rakhi is Ex.PW17/D and the same was also signed by Sh. Dinesh Kumar Kaushsik, Sh. Parashar and Sh. Ashok Kumar Ramchandani. He was shown letter of continuity dated 08.03.2002 Ex.PW5/G signed by Smt. Ram Rakhi and he stated that the same was submitted after increase of limits. Having seen the letter dated 08.03.2002 Ex.PW2/E, he stated that the same was written by Smt. Shanti Devi to the Manager, PNB, New Rohtak Road Branch asking the branch to acknowledge receipt of title deed of property. He stated that this was submitted as fresh guarantor. Having seen the another letter dated 08.03.2002 Ex. PW2/F, he stated that the same was written by Smt. Shanti Devi to the manager, PNB, NRB by which Smt. Shanti Devi submitted that she was becoming a guarantor in this case. He was shown Sale Deed dated 21.04.1964 Ex.PW2/A in favour of Sh. Surender Nath in respect of Plot No. 154, Block No. N, Greater Kailash and he stated that the said Sale Deed was submitted for taking loan by M/s Gaaman CC No. 06/12 & ID No. 64/19 Page 82 of 402 State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 Global Exports. He was shown letter dated 25.03.2002 Ex.PW2/C and he stated that this letter was written by Smt. Shanti Devi to Senior manager, PNB, New Rohtak Road Banch. Having seen the document Ex.PW2/D, he stated that this is declaration regarding assets and liabilities of Smt. Shanti Devi and it was part of documents submitted at the time of obtaining loan by M/s Gaaman Global Exports.
52. PW17 Sh. D.K. Parashar who was posted as Officer in New Rohtak Road Branch of PNB from September 2001 to July/August 2002 has deposed that four Agreements of Guarantee Ex.PW17/A to Ex.PW17/D were executed on 08.03.2002 with regard to loan advanced to M/s Gaaman Global Exports i.e. CC (H) for Rs. 65 lakhs, CC (BD) for Rs. 15 lakhs, Inland Letter of Credit (ILC) for Rs. 30 lakhs, Inland Letter of guarantee (ILG) for Rs. 5 lakhs. All the said agreements bear his signature at point A on behalf of the bank. He further deposed that Ex.PW17/A was executed by Ms. Shefali Mukherjee and Sh. A. Banerjee, Ex.PW17/B was executed by Sh. Arvind Johri, Ex.PW17/C was executed by Ms. Shanti Devi and Ex. PW17/D was executed by Ms. Ram Rakhi and they all signed in his presence on every page.
53. PW38 Sh. Dinesh Kumar Kaushik who in the year 2002 was posted as Clerk in PNB, NRB has also deposed that he has signed the Agreement of CC No. 06/12 & ID No. 64/19 Page 83 of 402 State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 Guarantee dated 08.03.2002 Ex.PW2/M (also Ex.PW17/C) executed by Smt. Shanti Devi and Agreement of Guarantee dated 08.03.2002 Ex.PW5/N (also Ex. PW17/D) executed by Smt. Ram Rakhi as a witness.
54. PW23 Sh. Ashok Ramchandani deposed that Hypothecation of Goods and Book Debts to secure Cash Credit Facility dated 08.03.2002 was executed by M/s Gaaman Global Exports and the same is Ex. PW23/E bearing his signature as a witness, signature of accused K.B. Relan, Mahan Mukherjee and Rajendra S. Raikwar. He further deposed that Supplementary Agreement dated 08.03.2002 Ex.PW23/F was executed between M/s Gaaman Global Exports and the bank which he signed as a witness and also signed by Mahan Mukherjee and Rajendra S. Raikwar. He was shown Agreement of Guarantee dated 08.03.2002 Ex.PW17/B executed between Arvind Johri and the Bank, Agreement of Guarantee dated 08.03.2002 Ex.PW17/D executed between Ram Rakhi and the bank, Agreement of Guarantee dated 08.03.2002 Ex.PW17/C executed between Shanti Devi and the bank and he deposed that all these documents were executed in his presence and he signed the same as a witness.
55. In the crossexamination of these witnesses, the accused persons have not disputed the execution of aforesaid loan documents on 08.03.2002 as mentioned by above prosecution witnesses.
CC No. 06/12 & ID No. 64/19 Page 84 of 402
State vs. Arvind Johri. & Ors Judgment dt.18.10.2022
56. The prosecution, now, has alleged that A2 Mahan Mukherjee and A1 Arvind Johri (since deceased) in pursuance of criminal conspiracy with other accused persons submitted fake/bogus Sale Deed of property bearing No. 154, Greater Kailash, PartI, New Delhi pursuant to the enhancement of cash credit facility from Rs. 20 lakhs to Rs. 65 lakhs, while Smt. Shanti Devi, the owner of the said property, had never mortgaged the said property against the loan availed by A12 M/s Gaaman Global Exports. It has also been alleged that A7 Seema Nagpal in furtherance of said criminal conspiracy with Arvind Johri, Mahan Mukherjee, K.B. Relan and other accused persons impersonated as "Shanti Devi" and executed the guarantee documents as owner of property No. N154, Greater Kailash, PartI, New Delhi.
57. In order to prove the said allegations, the prosecution has examined PW2 Smt. Anuradha Singh, the daughterinlaw of Shanta Jolly @ Shanti Devi. She got married to Captain Parmod Jolly, son of Smt. Shanti Devi in the year 1980, however, he passed away in September 1988 and she got married again to Captain Baljeet Singh in the year 1989, after death of Parmod Jolly. She deposed that Dr. Surender Nath Jolly, father of her late husband Captain Parmod Jolly was the owner of the property bearing No. N154, Greater Kailash, PartI, New Delhi and after his death the said property was transferred in the name of CC No. 06/12 & ID No. 64/19 Page 85 of 402 State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 his wife Smt. Shanta Jolly. She further deposed that Dr. Surender Nath Jolly expired in the year 1972 and Smt. Shanti Jolly expired in the year 2006. She further deposed that before marriage, Smt. Shanta Jolly was known as Shanti Devi. She can identify the handwriting and signatures of late Smt. Shanta Jolly. She deposed that Smt. Shanta Jolly @ Shanti Devi never mortgaged the said property to any bank. The original sale deed of the above property was with her till 2008.
57.1. She was shown Sale Deed dated 22.04.1964 Ex.PW2/A purportedly in respect of the above said property and she stated that this is not the original/genuine Sale Deed in respect of property bearing No. N154, Greater Kailash, PartI, New Delhi. She was also shown Relinquishment Deed dated 19.06.2001 Ex.PW2/B in respect of above property. She stated that the purported signatures of Smt. Shanti Devi at points Q379, Q380, Q382, Q383 and Q384 on the said document are not of her motherinlaw Smt. Shanta Jolly. She further deposed that the photograph affixed at point A on the same is not of her motherinlaw. The photograph at point A, below which it is written "Shanti Devi" is actually of accused Seema Nagpal who was tenant in the said property. She further deposed that the handwriting and signatures purported to be of Smt. Shanti Devi at points Q1 to Q4 on the letter dated 25.03.2002 Ex.PW2/C CC No. 06/12 & ID No. 64/19 Page 86 of 402 State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 addressed to Sr. Manager, PNB, NRB are not of Smt. Shanta Jolly. She further denied the signatures of Smt. Shanti Devi on Net worth Statement Ex. PW2/D at point Q5 and on the letters Ex.PW2/E & Ex.PW2/F both dated 08.03.2002 purported to be written by Smt. Shanti Devi to the Manager, PNB. She was shown letter of continuity dated 19.08.2002 Ex.PW2/G bearing signatures purported of Smt. Shanti Devi at points Q10, letter of continuity dated 14.02.2003 Ex.PW2/H bearing signature purported to be one Smt. Shanti Devi at point Q376, letter of continuity dated 09.03.2003 Ex.PW2/I bearing signature purported to be one Smt. Shanti Devi at point Q377 and she stated that the same are not of Mrs. Shanta Jolly. She was further shown agreement of guarantee dated 14.08.2002 Ex.PW2/J purportedly signed by Smt. Shanti Devi at points Mark A, A1 to A13. She denied the signatures of Smt. Shanti Devi on the same. She was shown agreement of guarantee dated 08.02.2003 Ex.PW2/K, agreement of guarantee dated 07.04.2003 Ex.PW2/L and agreement of guarantee dated 08.03.2002 Ex.PW2/M purportedly signed by Smt. Shanti Devi. She denied the signatures of Smt. Shanti Devi on the same. She further denied the handwriting and signatures of Smt. Shanti Devi on the letter dated 10.04.2002 Ex.PW2/N. She deposed that her motherinlaw Smt. Shanta Jolly had never mortgaged the above property with any Bank and she has never stood as a CC No. 06/12 & ID No. 64/19 Page 87 of 402 State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 guarantor for M/s Gaaman Global Exports.
57.2. She was also shown photocopy of another Relinquishment Deed dated 19.06.2001 Ex.PW2/O and she stated that the photograph on the right side of first page of this document at point A is not of Smt. Shanta Jolly and the same is of accused Seema Nagpal. She further deposed that the signatures purported to be of Shanti Devi on this document are not of Smt. Shanta Jolly. 57.3. PW2 Smt. Anuradah Singh was subjected to crossexamination by A2 Mahan Mukherjee, A3 Rajendra S. Raikwar and A8 K.B. Relan. In her crossexamination by Ld. Counsel for A2 Mahan Mukherjee, she stated that she used to come to the above property during holidays/leave period. Her husband had taken premature retirement in the year 2000 and, thereafter, she used to visit the said property quite often i.e. after every week or ten days. She did not remember whether she had handed over any document bearing signature of Smt. Shanta Jolly/Shanti Devi to the CBI. She was put a suggestion that she is not in a position to admit or deny the signatures on the documents shown to her which she denied.
57.4. In her crossexamination by Ld. Counsel for A3 Rajendra S. Raikwar she admitted that she did not know any Rajendra S. Raikwar. 57.5. In her crossexamination by Ld. Counsel for A8 K.B.Relan, CC No. 06/12 & ID No. 64/19 Page 88 of 402 State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 suggestions were put to her that her relations with Smt. Shanta Jolly were not cordial after her second marriage or that because of the said reason she was not residing with Smt. Shanta Jolly and further that Smt. Shanta Jolly was not sharing her personal matter with her or that because of the said reason, she is not aware of any litigation about the property in question, which were denied by the witness. She volunteered that Smt. Shanti Devi used to share every detail with her. She further denied the suggestion that Smt. Shanta Jolly did not accept her second marriage or that because of the said reason, she was staying near her parents in Paschimi Vihar. She also denied the suggestion that Smt. Shanta Jolly had never signed in her presence or that she had not seen document signed by her. She volunteered that she (Smt. Shanta Jolly) had signed her Will in her presence. She admitted that she cannot say about the visitors who would have visited either Smt. Shanta Jolly or accused Seema Nagpal during her absence. 57.6. The aforesaid crossexamination of PW2 Smt. Anuradha Singh shows that her testimony on the material aspects that Sale Deed dated 22.04.1964 Ex.PW2/A is not a genuine Sale Deed; that Relinquishment Deeds Ex.PW2/B & Ex.PW2/O do not bear the photograph and signatures of Smt. Shanta Jolly @ Shanti Devi; that letter dated 25.03.2002 Ex.PW2/C, Net Worth Statement Ex.PW2/D, letter dated 08.03.2002 Ex.PW2/E, letter dated CC No. 06/12 & ID No. 64/19 Page 89 of 402 State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 08.03.2002 Ex.PW2/F do not bear the signature of Smt. Shanti Devi could not be impeached by any of the accused persons. Though she was suggested that she cannot identity the signature of Smt. Shanti Devi as she had not seen Smt. Shanti Devi signing any document which she has denied and she voluntarily stated that Smt. Shanti Devi had signed her Will in her presence. Except putting suggestions to witness that she was not residing with Smt. Shanti Devi because Shanti Devi had no cordial relations with her after her second marriage; and that Smt. Shanti Devi was not happy with her second marriage; and that she is not able to identify the signatures of Smt. Shanti Devi, no evidence has been led by A8 K.B. Relan to substantiate these suggestions put to the witness.
58. The statement of PW2 Smt. Anuradha Singh that Sale Deed Ex.PW2/A is not a genuine document is corroborated by PW6 Sh. Desh Raj Singh who was posted as Sub RegistrarIII at Asaf Ali Road in October 2004. He was shown office copy of Sale Deed dated 28.04.1964 from the file bearing Crl. Appeal No. 1639/14 titled as "Srikant Chawla vs. CBI" summoned from the Hon'ble High Court of Delhi which is Ex.PW6/A and he confirmed that the said office copy of Sale Deed pertains to their office. He further deposed that Sale Deed Ex.PW6/A pertains to property No. 154, Block N, Greater Kailash, New Delhi. The witness was also shown another copy of the Sale Deed CC No. 06/12 & ID No. 64/19 Page 90 of 402 State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 Ex.PW2/A in respect of the same property bearing No. 154, Block N, Greater Kailash, New Delhi from the Court record and the witness stated that both the Sale Deeds Ex.PW6/A and Ex. PW2/A were shown to him during course of the investigation and after comparing the same, he had pointed out the differences in the two Sale Deeds and opined the sale deed Ex. PW2/A to be a forged one on the basis of there being differences of colour in the paper used for preparing Sale Deed as in the Ex.PW6/A colour of the paper is Greenish whereas in Ex. PW2/A it is yellowish; there was difference of font size in both the Sale Deeds; signatures of SubRegistrar, seller and purchaser were also different; the handwritten portion of the Sale Deed was also in different ink and handwriting and the seal impression was also more clear in Ex.PW6/A as compared to Ex. PW2/A. At Point 'X' on Ex. PW6/A, the word 'unto' is typed whereas in Ex.PW2/A at point X, word 'upto' is typed and lastly at point Y on Ex. PW6/A, there is the notification seal whereas at point 'Y' on Ex.PW2/A; a paper slip has been pasted in respect of notification of the property. The witness in the Court also, after comparing both the Sale Deeds remained firm on his stand that Ex.PW2/A is a forged Sale Deed.
58.1. PW6 was subjected to crossexamination only by A8 K.B. Relan and in the said crossexamination he admitted that there is the system in Sub CC No. 06/12 & ID No. 64/19 Page 91 of 402 State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 Registrar office for inspection of documents by an Advocate. Voluntarily, he stated that even Bank Officials can also inspect the documents. He stated that he has not seen the record pertaining to inspection in the concerned file. He volunteered that the record pertaining to this case was sent to Archive Department, Mehrauli and the same was summoned when the CBI made inquiry.
59. It is apparent from crossexamination of this witness that his opinion that the Sale Deed Ex.PW2/A in respect of property N154, Greater Kailash, PartI, New Delhi is a forged document having been compared the same with the original Sale Deed Ex.PW6/A has remained unshaken.
60. The other title documents shown to have been submitted by Smt. Shanti Devi are the Relinquishment Deeds Ex.PW2/B & Ex.PW2/O which have also been claimed by the prosecution to be forged one. Perusal of the said documents reveals that A7 Seema Nagpal (since deceased) has been shown to be daughter of Sh. Surender Lal, the erstwhile owner of the property bearing N 154, Greater Kailash, PartI, New Delhi. After his death, the property was devolved upon his legal heirs, i.e. Smt. Shanti Devi (wife) and A7 Seema Nagpal (daughter). Vide Relinquishment Deeds Ex.PW2/B & Ex.PW2/O, A7 Seema Nagpal has been shown to have relinquished her half share in the CC No. 06/12 & ID No. 64/19 Page 92 of 402 State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 property in favour of Smt. Shanti Devi. On both the Relinquishment Deeds, the photograph affixed at point 'A' was purported to be of Smt. Shanti Devi and photograph at point 'B' was shown to be of A7 Seema Nagpal being the executant of these documents. However, visibly both the photographs at point 'B' on these documents purported to be of Seema Nagpal are different, which is substantiated when PW5 Sh. Rajesh Kumar during his crossexamination on behalf of A2 Mahan Mukherjee, after seeing the document Ex.PW2/O, stated that Ex.PW2/O bears photograph of Smt. Neelam Gulati at point B, who is wife of his cousin. PW18 Smt Neelam Gulati was also confronted with the Relinquishment Deed Ex.PW2/O and having seen the photograph at point B on the said document, PW18 Smt. Neelam Gulati has confirmed that this is her photograph, though she denied her signature. She further deposed that the name "Seema Nagpal" underneath her photograph was wrongly written. She also deposed that the photograph at point A on Ex. PW2/O is of Ms. Seema and not of Smt. Shanti Devi.
61. PW18 Smt. Neelam Gulati has explained the reason for her photograph being affixed at point A on Ex.PW2/O. She deposed that during 20012002, she used to work in the office of Anil Mahajan and she worked there for about five months and she had given her photograph to accused Anil CC No. 06/12 & ID No. 64/19 Page 93 of 402 State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 Mahajan as he had asked her to be a witness in a rent agreement which was prepared for somebody and that is why the photograph was given. Then he took her to some office. Ms. Seema Nagpal was also with them. Before going to the office they took her signature on a document and also took her photograph. She signed that document while remaining seated in the car as she was asked so by Anil Mahajan. She further deposed that she knew Seema Nagpal as she (Seema Nagpal) used to come to the office of accused Anil Mahajan.
62. In addition, PW18 Smt. Neelam Gulati came across Sh.Surender Khosla, who was frequently visiting the students, when she used to supply meal tiffin to students. She had requested Sh. Surender Khosla for arranging loan to her. He had asked for property documents and then took the PW18 to the office of Anil Mahajan where photocopy of title deed of 208 Old Gupta Colony, Near Vijay Nagar, Delhi9 was given to Surender Khosla, who further handed it over to Anil Mahajan, however, after some days Anil Mahajan told that loan could not be arranged and photocopies were returned. Then, it was Surender Khosla who arranged the job of PW18 in the office of Anil Mahajan and in this way she worked in the office of Anil Mahajan for about five months (to clean the office etc.). PW19 Virender Gaba is nandoi/husband of sisterinlaw of PW18 and she was also confronted with relinquishment deed Ex.PW2/O to explore CC No. 06/12 & ID No. 64/19 Page 94 of 402 State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 about signature of Virender Gauba, however, she specifically denied signature of Virender Gauba at PointQ406 on relinquishment deed Ex. PW2/O.
63. In her crossexamination by Ld. Counsel for A5, she stated that accused Anil Kumar Mahajan has not got any document prepared or signed from her other than the one on which he had taken her signature and photograph in the year 1998 when he told her that a rent agreement of somebody was to be prepared and her photograph was required as a witness. She had not gone inside the office of Sub Registrar and she had signed the document while sitting in the car. She voluntarily stated that she had signed as "Seema" as told by accused Anil Kumar Mahajan. She further deposed that she was facing financial problem and she was told by accused Anil Kumar Mahajan that Seema could not come and that he should sign as "Seema" and for this he had given her Rs. 2000/. She also deposed that she had worked with accused Anil Kumar Mahajan in the year 2001 or 2002 and she was working as a peon.
64. So, as per PW18 Smt. Neelam Gulati, her photograph which she had given to her employer A5 Anil Mahajan (since deceased) on the pretext of preparing some rent agreement had been misused by him on Relinquishment Deed Ex.PW2/O and she signed the Relinquishment Deed Ex.PW2/O as "Seema Nagpal" on the asking of A5 Anil Mahjan. She has identified the photograph of CC No. 06/12 & ID No. 64/19 Page 95 of 402 State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 Seema Nagpal at point 'A'.
65. It is interesting to note that Ld. Counsel for A7 had adopted the crossexamination conducted by Ld. Counsel for A5 qua this witness and nothing material has come out in her said crossexamination to impeach her testimony with regard to her photograph being affixed on the Relinquishment Deed Ex.PW2/O in place of Seema Nagpal and the photograph of Seema Napal being affixed at point B in place of Shanti Devi and also the circumstances under which she had signed the same as "Seema Nagpal".
66. Thus, it is apparent that Relinquishment Deed Ex.PW2/O is a forged document. With regard to forgery of Relinquishment Deed Ex.PW2/B, the prosecution has examined PW19 Sh. Virender Kumar, who is husband of daughter of Smt.Ram Rakhi and has been shown as one of the witnesses to the Relinquishment Deeds Ex.PW2/B and Ex.PW2/O. He has denied his signatures at point Q386 on Relinquishment Deed Ex. PW2/B and at point Q406 on the true photocopy of Relinquishment Deed Ex.PW2/O.
67. This witness was crossexamined by Ld. Counsel for A5 Anil Kumar Mahajan only. The major part of the crossexamination of the witness was on the aspect of his alleged role and of Smt.Neelam Gulati in impersonating Jogender Gulati in the bank, but the same was not relevant in the present case. CC No. 06/12 & ID No. 64/19 Page 96 of 402
State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 On the aspect of Relinquishment Deed Ex.PW2/B, the witness has categorically stated that he had never gone to the office of Sub Registrar, New Delhi. Having seen the Relinquishment Deed Ex.PW2/B, the witness reaffirmed that the thumb impression at point QTI3 and the signature at point Q386 are not his thumb impression/signature. He denied the suggestion that Ex.PW2/B bears his thumb impression or signature.
68. Nothing contrary has come out in the crossexamination of this witness to disbelieve his version. Rather he stood firm on his stand that Relinquishment Deed Ex.PW2/B does not bear his signature at point Q386. This statement of the witness is further corroborated from the CFSL opinion Ex.PW41/U. PW41 Sh. M.C. Jain, Assistant Government Examiner, Chandigarh (the GEQD) upon examination and comparison of the specimen signatures of this witness taken during course of the investigation marked S156 to S162 with his disputed signature on Relinquishment Deed Ex. PW2/B at point Q386 has opined, "that the person who wrote the blue enclosed signatures stamped and marked S156 to S162 (specimen signatures of this witness taken during course of the investigation) did not write the red enclosed signature similarly stamped and marked Q386."
69. Another witness examined by the prosecution, to prove the forgery of CC No. 06/12 & ID No. 64/19 Page 97 of 402 State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 Relinquishment Deed Ex.PW2/B, is PW43 Smt. Rukmani Khanna, neighbour of Smt Shanta Joly @ Shanti Devi. She deposed that she is housewife and she knew Shanta Jolly alias Shanti Devi, who was residing in her neighbour in house no. N154, Greater KailashI, New Delhi. She was shown Relinquishment Deed Ex.PW2/B and she deposed that the photograph at point Mark A affixed on the right side of the first page of the said document is of Seema Nagpal and not of Shanti Devi. She also deposed that Seema Nagpal was tenant of Smt. Shanta Jolly @ Shanti Devi.
69.1. This witness was subjected to crossexamination by A8 K.B. Relan only wherein she stated that Seema Nagpal was residing in the same premises in which Smt. Shanti Devi was residing. She further stated that Smt. Shanti Devi was staying alone and died 78 years back.
70. Thus, it is clear that Ld. Defence Counsel could not assail the testimony of this witness that Relinquishment Deed Ex.PW2/B does not bear the photograph of Smt. Shanti Devi.
71. From the aforesaid evidence on record, the prosecution has successfully proved that Smt. Shanti Devi, the owner of the property bearing N154, Greater Kailash, PartI, New Delhi had never mortgaged her property with New Rohtak Road Branch of Punjab National Bank against loan availed by CC No. 06/12 & ID No. 64/19 Page 98 of 402 State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 M/s Gaaman Global Exports and the title deeds of the said property i.e. Sale Deed Ex.PW2/A and the Relinquishment Deeds Ex.PW2/B & Ex.PW2/O submitted by the borrower firm through its CEO A1 Arvind Johri and partner A2 Mahan Mukherjee with the bank at the time of enhancement of CC (H) limit of Rs. 20 lakhs to Rs. 65 lakhs are forged documents. As Smt. Shanti Devi never stood guarantor for M/s Gaaman Global Exports, the documents/letters purported to be executed/written by Smt. Shanti Devi as guarantor pursuant to enhancement of said credit facility viz. letter dated 25.03.2002 Ex.PW2/C, letter dated 08.03.2002 Ex.PW2/E, another letter dated 08.03.2002 Ex.PW2/F, Agreement of Guarantee dated 08.03.2002 Ex.PW2/M (also Ex.PW17/C), letter dated 10.04.2002 Ex.PW2/M cannot be said to be written/executed by her and the same also stand to be forged and fake.
72. There is also CFSL/expert opinion Ex.PW41/U in respect of handwritings appearing on letter dated 25.03.2002 Ex.PW2/C which corroborates the case of the prosecution that the said letter was not written by Smt. Shanti Devi. Vide this letter, Smt Shanti Devi was shown to have informed the Branch Manager that she had already submitted the title deed in respect of property bearing No. N154, GKI, New Delhi for creation of equatable mortgage to secure the money advanced to M/s Gaaman Global CC No. 06/12 & ID No. 64/19 Page 99 of 402 State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 Exports and the registered letter sent by the bank dated 08.03.2002 was returned by her servant in her absence and she had confirmed the submission of title deed. The handwriting purported to be of Smt Shanti Devi has been shown in enclosed portion at point Q1, Q2 & Q4 and her purported signature has been shown at point Q3.
73. PW41 Sh. M.C. Joshi, the GEQD vide his opinion Ex.PW41/U, which was not challenged by any of the accused persons, has opined that, "The writings and signatures in the enclosed portion stamped and marked Q1, Q2, Q4 and S6 to S10 and S55 to S97 (specimen signatures of accused Arvind Johri taken during course of the investigation) have been written by one and the same person". Though there is no opinion with regard to signature at point Q3 but it is apparent that the handwritings on the letter Ex.PW2/C at points Q1, Q 2 & Q4 are of A1 Arvind Johri and not of Smt. Shanti Devi.
74. So far as the claim of prosecution regarding execution of guarantee and other documents by impersonators on 08.03.2002 pursuant to enhancement of CC (H) limit to Rs. 65 lakhs is concerned, Smt. Shanti Devi was shown to have executed Agreement of Guarantee dated 08.03.2002 Ex.PW2/M (also Ex.PW17/C) in the presence of bank officials.
75. PW23 Sh. Ashok Ramchandani, the bank official at Branch Office, CC No. 06/12 & ID No. 64/19 Page 100 of 402 State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 has categorically stated in his crossexamination by A8 K.B. Relan that the lady whose photograph is pasted on Ex.PW2/B had come to the Bank as Shanti Devi. Similarly, PW32 Sh.Rajiv Kumar Mahajan, having seen the Relinquishment Deed dated 19.06.2001 Ex.PW2/B deposed that the lady whose photograph is affixed at point A on Ex. PW2/B had come to the bank and executed the documents in his presence to which there is no crossexamination of the witness by any of the accused persons. It has already come on record that at point A on Ex.PW2/B there is photograph of A7 Seema Nagpal and not of Smt. Shanti Devi. It shows that Smt.Shanti Devi was impersonated by A7 Seema Nagpal.
76. Smt. Ram Rakhi was also shown to have executed letter of continuity dated 08.03.2002 Ex.PW5/G and Agreement of Guarantee dated 08.03.2002 Ex.PW5/N (also Ex. PW17/D) as a guarantor in the presence of bank officials. As it has already been established on record that Smt. Ram Rakhi had already expired in the year 1990, therefore she could not have appeared in the bank personally on 08.03.2002 and execute the said documents. As noted above, PW5 Sh. Rajesh Kumar has denied signatures of his grandmother Smt. Ram Rakhi on these documents. It is, thus, apparent that the said guarantee documents have also been executed by some impersonator, but as discussed earlier, the prosecution has not been able to find out as to who impersonated CC No. 06/12 & ID No. 64/19 Page 101 of 402 State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 Smt. Ram Rakhi in the bank.
REQUEST FOR ADHOC LIMIT OF RS. 35 LAKHS AND SANCTION OF SAME
77. The case of the prosecution is that Mahan Mukherjee being partner of M/s Gaaman Global Exports vide letter dated 01.08.2002 requested for sanction of an Adhoc limit of Rs. 35 lakhs. The said proposal was processed by A6 R.L. Jain at the branch level & recommended by Sh. R.M. Sachdeva and the same was sent to Regional Office on 02.08.2002. At Regional Office, the proposal was processed by Sh. S.S. Chhabra, A10 Anil Aggarwal, Sr. Manager (Credit) and Sh.Vinay Kapoor, Chief Manager on 13.08.2002 and the same was sanctioned by Sh. V.K. Sharma, the then Senior Regional Manager on the same day.
78. It is relevant to mention here that aforesaid proposal of sanction of ad hoc limit of Rs.35 lakhs was made by M/s Gaaman Global Exports pending sanction of earlier proposal made vide request letter dated 29.07.2002 for enhancement of CC (H) limit of Rs.65 lakhs to Rs. 150 lakhs, which shall be discussed later on under the proper head.
79. The prosecution has examined bank witnesses namely, PW12 Sh. R.M. Sachdeva, the then Manager at the Branch Office and PW31 CC No. 06/12 & ID No. 64/19 Page 102 of 402 State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 Sh. Vinay Kapoor, the then Chief Manager and PW42 Sh. V.K. Sharma, the then Senior Regional Manager at Regional Office to prove the sanction of ad hoc limit of Rs.35 lakhs to borrower firm M/s Gaaman Global Exports.
80. PW12 Sh. R.M. Sachdeva has deposed that vide letter dated 01.08.2002 Ex.PW12/GGG, accused Mahan Mukherjee requested for adhoc limit of Rs.35,00,000/ and vide letter dated 02.08.2002 Ex.PW12/HHH, the proposal was sent to the Regional Office. He further deposed that vide letter dated 13.08.2002 Ex.PW12/III, accused Anil Aggarwal conveyed to Senior Manager, PNB, NRB the sanction of adhoc limit of Rs.35 lakhs.
81. PW31 Sh. Vinay Kapoor deposed that format dated 02.08.2002 of New Rohtak Road Branch regarding adhoc accommodation of Rs. 35 lakhs sent to Sr. Regional Manager is Ex. PW31/Y. Though he could not identify the signatures of Branch Incumbent and Loan Incharge who signed it. He further deposed having seen the note dated 03.08.2002 Ex.PW31/Z (in file Ex.PW31/A (Colly) that vide said note, the Senior Regional manager has permitted 20% of the sanction limit to the party as requested by New Rohtak Road Branch. He also identified the letter dated 03.08.2002 Ex.PW31/AA (in file Ex.PW31/A (Colly) by which 20% of sanction limit was conveyed to Branch Office by the Regional Office. He further deposed that Ex.PW31/BB is office note dated CC No. 06/12 & ID No. 64/19 Page 103 of 402 State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 13.08.2002 of Regional Office wherein Senior Regional Manager has sanctioned adhoc limit of Rs.35 lakhs bearing signature of Sh. Wadhwa at point A, signatures of accused Anil Aggarwal at point B, signature of this witness at point C and signature of Sh. V.K. Sharma at point A and his endorsement in red ink at point E. He further deposed that the letter dated 13.08.2002 of Regional Office to NRB conveying sanction of adhoc limit for Rs. 35 lakhs is Ex. PW31/CC bearing signature of accused Anil Aggarwal at point A and initials of Sh. Wadhwa at point B.
82. There is no crossexamination on the facts as deposed by aforesaid two bank witnesses by any of the accused persons.
83. PW42 Sh. V.K. Sharma, the then Regional Manager, North Delhi Regional Office of Punjab National Bank has also deposed that a proposal dated 02.08.2002 Ex. PW31/Y for adhoc accommodation beyond vested power of the Branch Manager in respect of M/s Gaaman Global Exports was received in the Regional Office. The proposal was for ad hoc limit of Rs. 35 lakhs over and above the earlier sanctioned limit of Rs. 65 lakhs. The proposal was processed by the loan section vide process note dated 03.08.2002 Ex. PW31/Z. This proposal was recommended by loan officer namely Mr. Nagar, accused Anil Aggarwal, Senior Manager (Credit) and Sh. Vinay Kapoor, Chief Manager. He CC No. 06/12 & ID No. 64/19 Page 104 of 402 State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 had sanctioned and approved limit of 20% of Rs. 65 lakhs as adhoc limit for three months. Ex.PW31/Z bears his signature at point D and endorsement at point E. He further deposed that pursuant to sanction of limit of 20% as above, a proposal Ex.PW32/D for enhancement of existing limit of Rs. 65 lakhs to Rs. 150 lakhs was received from New Rohtak Road Branch in the Regional Office. The proposal was processed vide note dated 13.08.2002 Ex.PW31/BB for sanction of adhoc limit for Rs. 35 lakhs pending consideration of the enhancement proposal of Rs. 150 lakhs. The proposal was recommended by one Mr. Wadhwa, Desk Officer, accused Anil Aggarwal and Sh. Vinay Kapoor. He had sanctioned ad hoc limit of Rs. 35 lakhs pending sanction of enhanced limit of Rs. 150 lakhs on 13.08.2002. The process note is Ex. PW31/BB and the same bears his endorsement for sanction at point E and signature at point D.
84. During crossexamination of PW42 Sh. V.K. Sharma, he was suggested by Ld. Counsel for A8 that on 03.08.2002 he had verbally conveyed to the branch to release 20% over an above the existing limit to M/s Gaaman Global Exports or that such verbal communication was made without any recommendation from the Branch Manager i.e. accused No. 8 K.B. Relan which suggestion he denied. He was further suggested that on 13.08.2002, he had accorded sanction for Rs. 35 lakhs over and above the existing limits without CC No. 06/12 & ID No. 64/19 Page 105 of 402 State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 recommendation from accused No. 8 K.B.Relan which he again denied. However, these suggestions are contrary to the record. He admitted that vide his endorsement at point E on note dated 03.08.2002 Ex.PW31/Z, he had approved 20% ad hoc limit of Rs. 65 lakhs within drawing powers for three months. He admitted that vide proposal dated 02.08.2002 Ex. PW31/Y, the branch had recommended for sanction of ad hoc limit of Rs. 35 lakhs. He further admitted that vide his endorsement at point E on office note dated 13.08.2002 Ex.PW31/BB, he had approved ad hoc limit of Rs.35 lakhs over and above the limit of Rs. 65 lakhs, then subsisting. As far as he remembers, regular limit was sanctioned later on. He further stated that when the branch initially requested for ad hoc limit of Rs. 35 lakhs, pending sanction of regular limit, vide Ex.PW31/Y, his power would have been 20% of the regular limit and that is why he would have sanctioned 20% of the regular limit. Later a note was put up by the concerned section in the regional office that limit of Rs. 35 lakhs be sanctioned pending approval of the regular limit on which he had sanctioned ad hoc limit of Rs. 35 lakhs.
85. From the testimony of aforesaid bank witnesses, it stands proved that vide letter dated 01.08.2002 Ex.PW12/GGG, accused Mahan Mukherjee being partner of M/s Gaaman Global Exports requested for adhoc limit of CC No. 06/12 & ID No. 64/19 Page 106 of 402 State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 Rs.35,00,000/ pending sanction of enhancement of regular limit of Rs.65 lakhs to Rs.150 lakhs. The proposal Ex.PW31/Y for the same was prepared at the branch, signed by Sh. R.L. Jain, Loan Incharge and PW12 Sh. R.M. Sachdeva as Officiating Incumbent Incharge and the same was sent to Regional Office vide letter dated 02.08.2002 Ex.PW12/HHH for sanction. The proposal Ex.PW31/Y was processed vide process note dated 03.08.2002 Ex.PW31/Z at the Regional Office by which it was recommended by Mr. Nagar, accused Anil Aggarwal, Senior Manager (Credit) and Sh. Vinay Kapoor, Chief Manager that Branch Manager may be permitted to permit the party 20% of the sanctioned limit in CC (H) account subject to availability of the sufficient DP. PW42 Sh. V.K. Sharma, the Senior Regional Manager on the said recommendation had sanctioned and approved limit of 20% of sanctioned limit i.e. Rs. 65 lakhs as ad hoc limit for three months vide his endorsement at point E on process note Ex.PW31/Z. The said sanction was conveyed to the Branch vide letter dated 03.08.2002 Ex.PW31/AA by A10 Anil Aggarwal, Sr. Manager (Credit). Vide another note dated 13.08.2002 Ex.PW31/BB, it was recommended by Mr. Wadhwa, Desk Officer, accused Anil Aggarwal and PW31 Sh. Vinay Kapoor to Senior Regional Manager that Branch Manager may be permitted to allow the party for ad hoc limit of Rs. 35 lakhs subject to availability of sufficient DP, CC No. 06/12 & ID No. 64/19 Page 107 of 402 State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 however all the terms and conditions of the original sanction will remain unchanged. Pursuant to said recommendation, PW42 Sh. V.K. Sharma sanctioned ad hoc limit of Rs. 35 lakhs pending sanction of enhanced limit of Rs. 150 lakhs on 13.08.2002 vide his endorsement on process note dated 13.08.2002 Ex.PW31/BB at point E. It also stands proved that this sanction of proposal was conveyed by the Regional Office to the Branch Office vide letter dated 13.08.2002 Ex.12/III by A10 Anil Aggarwal.
EXECUTION OF FORGED GUARANTEE DOCUMENTS BY IMPERSONATORS IN RESPECT OF PROPERTY BEARING NO.208, OLD GUPTA COLONY, VIJAY NAGAR, NEW DELHI OWNED BY SMT. RAM RAKHI AND IN RESPECT OF PROPERTY BEARING NO.
N154, GREATER KAILASH, PARTI, NEW DELHI OWNED BY SMT. SHANTI DEVI
86. It is not in dispute that the ad hoc limit of Rs. 35 lakhs was sanctioned by the Regional Office against the existing collateral securities of aforesaid two properties. It is also not disputed by the accused persons that in compliance of the instructions of the Regional Office while granting the adhoc limit of Rs.35 lakhs on 13.08.2002, loan documents were executed at Branch Office by the borrower and the guarantors on 14.08.2002. PW12 Sh. R.M. CC No. 06/12 & ID No. 64/19 Page 108 of 402 State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 Sachdeva and PW23 Sh. Ashok Ramchandani (who is one of the witnesses of the guarantee documents) have identified the documents executed as under: Documents executed by the borrower M/s Gaaman Global Exports through Mahan Mukherjee and Rajendra S. Raikwar:
1. Hypothecation agreement dated : Ex.PW12/JJJ 14.08.2002
2. Deed of hypothecation dated : Ex.PW12/LLL 14.08.2002
3. Hypothecation of movable assets : Ex.PW23/J forming part of fixed/block assets dated 14.08.2002 Documents executed by the guarantors:
1. Agreement of guarantee dated : Ex.PW23/K 14.08.2002 executed by Arvind Johri and A. Banerjee.
2. Agreement of guarantee dated : Ex.PW23/M 14.08.2002 executed by Shefali Mukherjee.
3. Agreement of guarantee dated : Ex.PW2/J 14.08.2002 executed by Shanti Devi and Ram Rakhi
4. Letter of continuity dated 19.08.2002 : Ex.PW2/G CC No. 06/12 & ID No. 64/19 Page 109 of 402 State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 executed by Shanti Devi
5. Letter of continuity dated 19.08.2002 : Ex.PW5/H executed by Ram Rakhi.
87. However, it has already been established on record that the title documents in respect of aforesaid two properties i.e. Sale Deed Ex.PW5/B in respect of property No. A208, Old Gupta Colony, Vijay Nagar, Delhi and Sale Deed Ex.PW2/A and Relinquishment Deeds Ex.PW2/B & Ex.PW2/O in respect of property bearing No. N154, Greater Kailash, PartI, New Delhi are forged documents and the owners of the said properties, namely, Smt. Ram Rakhi and Smt. Shanti Devi had never mortgaged their respective property with New Rohtak Road Branch of Punjab National Bank against the loan availed by M/s Gaaman Global Exports. Therefore, Smt Shanti Devi cannot be said to have signed the letter of continuity dated 19.08.2002 Ex.PW2/G and Agreement of Guarantee dated 14.08.2002 Ex.PW2/J. PW2 Smt. Anuradha Singh has also denied signatures of Smt. Shanti Devi on Letter of continuity dated 19.08.2002 Ex.PW2/G and Agreement of Guarantee dated 14.08.2002 Ex.PW2/J purported to be executed by Smt. Shanti Devi and Smt. Ram Rakhi jointly.
88. Similarly, Smt. Ram Rakhi who had already expired in the year 1990, cannot be said to have signed the letter of continuity dated 19.08.2002 CC No. 06/12 & ID No. 64/19 Page 110 of 402 State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 Ex.PW5/H and Agreement of guarantees dated 14.08.2002 Ex.PW2/J purported to be executed by Smt. Shanti Devi and Smt. Ram Rakhi jointly. PW5 Rajesh Kumar has also denied the signature of Smt. Ram Rakhi on both the documents.
89. Apparently, these guarantee documents purported to be executed by Smt. Ram Rakhi and Smt. Shanti Devi are forged documents and had been signed by impersonators. It has come on record that A7 Seema Nagpal impersonated Smt. Shanti Devi. Though prosecution has not been able to find out the impersonator of Smt. Ram Rakhi.
PROPOSAL FOR ENHANCEMENT OF FUND BASED FACILITIES TO RS. 150 LAKHS, NON FUND BASED FACILITIES OF RS. 50 LAKHS AND TERM LOAN OF RS. 9.64 LAKHS AND SANCTION OF THE SAME
90. It is the case of the prosecution that A2 Mahan Mukherjee, partner of M/s Gaaman Global Exports submitted another proposal dated 29.07.2002 for enhancement of Fund Based Facilities to Rs.150 lakhs, Non Fund based facilities of Rs. 50 lakh and term loan of Rs. 9.64 lakhs. The proposal was processed at Branch Level and A8 K.B.Relan, the then Branch Manager on 09.08.2002 recommended the Regional Office to sanction the credit facilities to M/s Gaaman Global Exports. It is further case of the prosecution that the said CC No. 06/12 & ID No. 64/19 Page 111 of 402 State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 proposal was processed on 30.01.2003 at the Regional Office and Sh. V.K. Sharma, Senior Regional Manager sanctioned the proposal for following credit facilities : CC (H) for Rs. 125 lakhs, CC (Book Debts) of Rs. 15 lakhs (Overall Ceiling 140 lakhs), ILC facility of Rs. 30 lakhs & ILC Limit of Rs. 5 lakhs.
91. PW12 Sh. R.M. Sachdeva, in this regard, having seen the file Ex.PW12/H (Colly) has identified the gist of proposal submitted by accused Mahan Mukherjee regarding increase of limits and the same is Ex.PW12/FFF. He has identified the signatures of accused Mahan Mukherjee on all the pages. He has also identified the sanction letter dated 03.02.2003 issued by accused Anil Aggarwal by which the sanction of proposal was conveyed to the Branch office. The said letter along with its enclosures is Ex.PW12/MMM. He deposed that M/s Gaaman Global Exports was sanctioned CC limit of Rs. 125 lakhs, CC book debts limits of Rs. 15 lakhs with ceiling of Rs. 140 lakhs and non fund based limit i.e. Inland letter of Credit (ILC) (DA/DP) of Rs. 30 lakhs and Inland letter of Guarantee (ILG) of Rs. 5 lakhs. As per the terms and conditions attached with sanction letter dated 03.02.2003 Ex.PW12/MMM, the immovable properties taken as collateral security in this account were (i) Property bearing No. 208, Old Gupta Colony, Vijay Nagar, New Delhi owned Smt. Ram Rakhi CC No. 06/12 & ID No. 64/19 Page 112 of 402 State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 and (ii) Property bearing No. N154, Greater Kailash, PartI, New Delhi owned by Smt. Shanti Devi.
92. PW32 Sh. Rajiv Kumar Mahjan, the clerk posted at Branch Office, has also identified the signature of accused Mahan Mukherjee on request letter of M/s Gaaman Global Exports for enhancement of limit from Rs.65 lakhs to Rs.150 lakhs which is Ex.PW32/C. He identified signature of accused Mahan Mukherjee since he used to come to the bank and had signed certain documents in his presence. He has also identified the signature of accused K.B. Relan at point A and signature of Sh. R.L. Jain at point B on the proposal Ex.PW32/D sent to Regional Office in respect of loan of M/s Gaaman Global Exports.
93. PW31 Sh. Vinay Kapoor, the then Chief Manager at Regional Office has also identified the letter of M/s Gaaman Global Exports addressed to Senior Manager, Punjab National Bank, New Rohtak Road requesting for enhancement of limit from Rs.65 lakhs to Rs. 1.5 crore as Ex.PW32/C and deposed that this letter was signed by partner of M/s Gaaman Global Exports. He deposed the said proposal for enhancement of loan limits from Rs. 65 lakhs to Rs. 150 lakhs submitted by Branch Office to Regional Office is Ex.PW32/D. He has identified the office note dated 30.01.2003 of Regional Office, North Delhi regarding enhancement of fund based limit from Rs. 100 lakhs to Rs. 140 CC No. 06/12 & ID No. 64/19 Page 113 of 402 State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 lakhs and renewal of non fund based limit of Rs. 35 lakhs alongwith terms and conditions which is Ex.PW31/II. He deposed that the proposal was sanctioned by Sh. V.K. Sharma. He further identified the office copy of letter dated 03.02.2003 of Regional Office, North Delhi addressed to Branch office, NRB conveying sanction of enhanced limits and the same is Ex.PW31/JJ bearing initials of Anil Aggarwal, his initials and of Sh. Bhatnagar.
94. PW42 Sh. V.K. Sharma, the then Regional Manager has deposed on the pattern of PW31 Sh. Vinay Kapoort that a proposal Ex.PW32/D for enhancement of existing limit of Rs. 65 lakhs to Rs. 150 lakhs was received from New Rohtak Road Branch in the Regional Office. This proposal of the party for enhancement of the limit to Rs. 150 lakhs was processed in the Regional Office vide process note dated 30.01.2003 Ex. PW31/II. Accused Anil Aggarwal and Sh. Vinay Kapoor had recommended enhancement for CC (H) of Rs. 125 lakhs, CC (BD) of Rs. 15 lakhs with ceiling of Rs. 140 lakhs and ILC of Rs 30 lakhs and ILG of Rs. 5 lakhs. He had sanctioned the limits as proposed above. He further deposed that the sanction was conveyed to the Branch Office by Regional Office on 03.02.2003 Ex.PW31/JJ by Anil Aggarwal.
95. The aforesaid facts as deposed by prosecution witnesses have not been challenged by any of the accused persons in their crossexamination, which CC No. 06/12 & ID No. 64/19 Page 114 of 402 State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 otherwise were not disputed by the accused persons in their respective statement recorded under Section 313 Cr.P.C. Hence, proposal of M/s Gaaman Global Exports through its partner A2 Mahan Mukherjee for enhancement of existing CC (H) limit of Rs. 65 lakhs to Rs. 150 lakhs and enhancement of other credit facilities vide request letter Ex.PW32/C, pursuant to the same the proposal Ex.PW32/D being recommended by A8 K.B. Relan, the then Branch Manager and sent by him to the Regional Office for sanction, the said proposal being processed by Sh.S.S. Chhabra, A10 Anil Aggarwal and Sh. Vinay Kapoor at Regional Office vide process note dated 30.01.2003 Ex.32/II and sanction of said proposal for CC (H) of Rs. 125 lakhs, CC (BD) of Rs. 15 lakhs with ceiling of Rs. 140 lakhs and ILC of Rs 30 lakhs and ILG of Rs. 5 lakhs by Sh. V.K. Sharma on 03.02.2003 stand proved. It also stands proved that the sanction was conveyed by the Regional Office to the Branch vide letter dated 03.02.2003 Ex.PW12/MMM [(also Ex.PW31/JJ in file Ex.PW31/DD (Colly) maintained by the Regional Office pertaining to M/s Gaaman Global Exports)]. SUBMISSION OF FORGED TITLE DOCUMENTS IN RESPECT OF PROPERTY BEARING NO. B65, PASCHIMI MARG, VASANT VIHAR, NEW DELHI REGISTERED IN THE NAME OF MS. STELLA A. BISWAS AND EXECUTION OF FORGED GUARANTEE DOCUMENTS BY THE IMPERSONATORS.
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96. The case of the prosecution is that A2 Mahan Mukherjee vide letter dated 29.07.2002 while submitting proposal for enhancement of CC (H) limit to Rs. 150 lakhs had also proposed to replace the collateral security of mortgage of existing two properties i.e. (i) A208, Old Gupta Colony, Vijay Nagar, Delhi valued at Rs. 50 lakhs & (ii) N154, Greater Kailash, PartI, New Delhi valued at Rs. 125 lakhs with single property bearing No. B65, Paschimi Marg, Vasant Vihar, New Delhi owned by one Ms. Stella Anima Biswas valued at Rs.500 lakhs.
97. In this context, PW32 Sh. Rajiv Kumar Mahjan has deposed that in the proposal Ex.PW32/D, collateral securities shown are A208, Old Gupta Colony, Vijay Nagar, Delhi of Smt. Ram Rakhi, N154, Greater Kailash, PartI, New Delhi of Smt. Shanti Devi and B65, Paschimi Marg, Vasant Vihar, New Delhi of Smt. Stella A. Biswas.
98. However, it has come on record from the testimony of PW12 Sh.R.M. Sachdeava that as per the terms and conditions attached with sanction letter dated 03.02.2003 Ex.PW12/MMM (also Ex.PW31/JJ in file Ex.PW31/DD (Colly), the proposal was sanctioned against existing collateral securities of property A208, Old Gupta Colony, Vijay Nagar, Delhi owned by Smt. Ram Rakhi and property N154, Greater Kailash, PartI, New Delhi owned by Smt. CC No. 06/12 & ID No. 64/19 Page 116 of 402 State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 Shanti Devi. The process note dated 30.01.2003 Ex.PW31/II reveals that since branch could not get NEC and valuation of property done and even they have not conducted the spot verification in respect of Property No. B65, Paschimi Marg, Vasant Vihar, New Delhi, the request of branch for substitution of security was not considered.
99. PW12 has also deposed that vide letter dated 04.02.2003 Ex.PW12/JJJJ addressed to Senior Manager, North Delhi Region (Inspection Cell), New Delhi, accused K.B. Relan has reiterated that his earlier recommendation to substitute existing properties worth Rs. 175 lakhs with fresh property value at Rs. 500 lakhs be approved. Vide letter dated 05.02.2003 Ex.PW12/KKKK, Senior Regional Manager, New Delhi sought some information from the Senior Manager, NRB, with regard to substitution of property and vide letter dated 06.02.2003 Ex.PW12/LLLL, accused K. B. Relan furnished the information and documents as required by SRM, North Delhi Region (Credit Section), New Delhi.
100. PW31 Sh. Vinay Kapoor, the Chief Manager at Regional Office has also identified the letters/correspondences in file Ex.PW31/DD (Colly) exchanged between the Branch and the Regional Office in this regard as under: CC No. 06/12 & ID No. 64/19 Page 117 of 402 State vs. Arvind Johri. & Ors Judgment dt.18.10.2022
1. Letter dated 04.02.2003 of Branch Office, NRB : Ex. PW31/KK addressed to Regional Office, North Delhi requesting substitution of property worth Rs. 175 lakhs with fresh property valued Rs.
500 lakhs at Vasant Kunj bearing signatures of accused K.B. Relan.
2. Office copy of letter dated 05.02.2003 of : Ex.PW31/LL Regional Office, North Delhi addressed to Branch office, NRB asking to submit certain documents regarding property to be substituted bearing initials of Sh. V.K. Sharma, Anil Aggarwal and of this witness.
3. Letter dated 06.02.2003 of Branch Office, NRB : Ex. PW31/MM addressed to Regional Office, North Delhi enclosing photocopy of title deed to be mortgaged, copy of valuation report and copy of non encumbrance certificate bearing signatures of accused K.B. Relan.
4. Office copy of letter dated 06.02.2003 of : Ex. PW31/NN Regional office, North Delhi addressed to Branch Office, NRB mentioning non receipt of documents stated to be enclosed with Ex.PW31/MM bearing initials of Sh. V.K. Sharma, Anil Aggarwal and of this witness.
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5. Photocopy of letter dated 06.02.2003 of Branch : Ex..PW31/OO. Office to the SRM enclosing photocopy of title deed of property to be mortgaged, copy of valuation report and copy of non encumbrance certificate.
101. It is pertinent to mention here that though the request of substitution of existing properties of Smt. Ram Rakhi and Smt. Shanti Devi with property of Ms. Stella A. Biswas was not considered by the Regional Office, but the Branch had accepted the property of Smt. Stella A. Biswas offered by the borrower firm as an additional collateral security as submitted by the Ld. Counsel for A8 during course of the arguments. Accordingly, various loan documents were executed by the borrower and the guarantors pursuant to sanction of cash credit facility from Rs.65 lakhs to Rs. 125 lakhs. PW12 Sh. R.M. Sachdeva has identified those documents furnished/ executed by the borrower and the guarantors as under : Documents furnished/executed by the borrower firm
1. Specimen signature card of the account of : Ex.PW12/NNN M/s Gaaman Global Exports bearing signature of Mahan Mukherjee and Rajendra S. Raikwar CC No. 06/12 & ID No. 64/19 Page 119 of 402 State vs. Arvind Johri. & Ors Judgment dt.18.10.2022
2. Account opening form dated 08.02.2003 of : Ex.PW12/OOO M/s Gaaman Global Exports bearing signature of Rajendra S. Raikwar and Mahan Mukherjee.
3. Photocopy of terms and conditions in respect : Ex.PW12/PPP of account of M/s Gaaman Global Exports which were accepted by accused Mahan Mukherjee.
4. Agreement dated 08.02.2003 bearing : Ex.PW12/QQQ signatures of Mahan Mukherjee and Rajendra S. Raikwar
5. Agreement dated 08.02.2003 for : Ex. PW12/RRR.
purchase/discount of hundis/cheques bearing signature of Mahan Mukherjee and Rajendra S. Raikwar
6. Balance and security confirmation letter dated : Ex.PW12/SSS.
08.02.2003 bearing signature of Mahan Mukherjee and Rajendra S. Raikwar
7. Letter dated 08.02.2003 written by accused : Ex.PW12/TTT.
Rajendra S. Raikwar and Mahan Mukherjee to Branch Office, NRB for enhancement of credit facilities.
8. Agreement dated 08.02.2003 executed by : Ex.PW12/UUU Mahan Mukherjee and Rajendra S. Raikwar on behalf of M/s Gaaman Global Exports.
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9. Letter/undertaking dated 08.02.2003 written : Ex. PW12/VVV by accused Rajendra S. Raikwar and Mahan Mukherjee to Branch Office, NRB, New Delhi
10. List of sundry debtors for the period : Ex. PW27/D. 01.04.2002 to 05.02.2003 certified by Kapil Jain & Associates, Chartered Accountant
11. List of sundry debtors as on 08.02.2003 of : Ex. PW12/WWW M/s Gaaman Global Exports bearing signature of accused Mahan Mukherjee.
12. List of sundry debtors as on 08.02.2003 of : Ex. PW12/XXX M/s Gaaman Global Exports bearing signature of accused Mahan Mukherjee.
13. List of sundry debtors as on 25.12.2002 of M/s : Ex. PW12/YYY Gaaman Global Exports bearing signature of accused Mahan Mukherjee
14. Deed of hypothecation dated 08.02.2003 to : Ex.PW12/ZZZ secure LC on DA basis bearing signature of accused Mahan Mukherjee and Rajendra S. Raikwar.
15. Counter indemnity bond dated 08.02.2003 : Ex.PW12/AAAA executed by accused Rajendra S. Raikwar and Mahan Mukherjee. It also bears signature of Sh. Rajeev Mahajan, Special Assistant as a witness.
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1. Agreement of guarantee dated 08.02.2003 : Ex. PW2/K purportedly executed by Ram Rakhi and Smt. Shanti Devi
2. Agreement of guarantee dated 08.02.2003 : Ex. PW12/CCCC.
executed by Arvind Johri and A. Banerjee (fatherinlaw of A2 Mahan Mukherjee) and signed by accused R.L. Jain and K.B. Relan on behalf of the bank.
3. Agreement of guarantee dated 05.02.2003 : Ex.PW12/DDDD.
executed by Ms. Shefali Mukherjee (mother of A2 Mahan Mukherjee) and signed by the bank Manager.
4. Agreement of guarantee dated 13.02.2003 : Ex.PW12/FFFF executed by Ms. S.A. Biswas and signed on behalf of the bank by Sh. Roshan Lal and accused K.B. Relan.
5. Letter of continuity dated 14.02.2003 : Ex.PW2/H purportedly executed by Smt. Shanti Devi.
6. Letter of continuity dated 14.02.2003 : Ex. PW5/I purportedly executed by Smt. Ram Rakhi
7. Photocopy of ration card of Ms. S.A. Biswas : Ex.PW12/VVVV bearing signature of accused Mahan CC No. 06/12 & ID No. 64/19 Page 122 of 402 State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 Mukherjee at point A.
8. Affidavit cum undertaking dated 13.02.2003 : Ex. PW12/WWWW purportedly executed by S.A. Biswas
9. Guarantor information dated 13.02.2003 : Ex. PW12/AAAAA.
purportedly given by Ms. S.A. Biswas regarding her assets
10. Net worth statement purportedly given by Ms. : Ex.PW12/BBBBB S.A. Biswas regarding her net worth.
11. Perpetual sub lease dated 03.07.1973 in the : PW12/OOOO name of Ms. Stella Anima Biswas in respect of plot No. 65, Paschimi Vihar, Vasant Vihar was submitted to the bank by M/s Gaaman Global Exports
12. Letter purportedly written by Stella A. Biswas : Ex.PW12/PPPP.
to the Senior Manager, PNB, NRB, offering her property
13. Letter of authority dated 14.02.2003 : Ex.PW12/XXXX purportedly written by Stella A. Biswas to The Senior Manager, PNB
14. Letter dated 14.02.2003 purportedly written by : PW12/YYYY S.A. Biswas to the Senior Manager, PNB, New Delhi, by which she had submitted title deed of her property CC No. 06/12 & ID No. 64/19 Page 123 of 402 State vs. Arvind Johri. & Ors Judgment dt.18.10.2022
15. Another copy of the said letter : Ex. PW12/ZZZZ.
102. Execution of the aforesaid documents are not disputed by the accused persons.
103. Now, it has been alleged by the prosecution that A2 Mahan Mukherjee in furtherance of criminal conspiracy with A8 K.B. Relan and other accused persons submitted false/forged Perpetual Sub Lease deed of property bearing No. B65, Paschimi Marg, Vasant Vihar, New Delhi. It is further alleged by the prosecution that A6 Margrate Anthony in furtherance of the said criminal conspiracy with Arvind Johri, Mahan Mukherjee and other accused persons impersonated as Stella A. Biswas in the bank and executed the loan documents as property owner of property No. B65, Paschimi Marg, Vasant Vihar, New Delhi.
104. With regard to forgery of title documents, the prosecution has examined PW9 Sh. Ramesh Chand who in the year 2004 was working as Record Keeper in the Office of SubRegistrarIII, Asaf Ali Road, New Delhi. He deposed that CBI made inquiries from their office and the CBI was already having a copy of Perpetual Sub Lease Deed and they had asked him to compare CC No. 06/12 & ID No. 64/19 Page 124 of 402 State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 the copy which was available with them with the office record available with them. He was shown Perpetual Sub Lease Deed dated 03.07.1973 purportedly executed between the President of India and Ms. Stella Anima Biswas Mark PW9/1 and the copy of Perpetual Sub Lease Deed dated 03.07.1973 executed between the President of India and Ms. Stella Anima Biswas Ex.PW9/A brought by one Sh. Hira Lal, Preservation Assistant in the Department of Archives, Qutub Institution Area, Satsang Vihar, Marg, 18A, New Delhi, who was present with Book1, Vol. No. 3177 of the office of SubRegistrar, Asaf Ali Road, Delhi, and after comparing both the documents (Mark PW9/1 & Ex.PW9/A), he opined that Perpetual Sub Lease Deed Mark PW9/1 is not true copy of Ex. PW9/A which was executed between President of India and Ms. Stella Anima Biswas. He has enumerated the following points/reasons to come to the said conclusion: i. As per the original Perpetual Sub Lease Deed Ex.PW9/A, the stamp duty of Rs. 338/ has been paid, whereas in Mark PW9/1, stamp duty of Rs.273/ has been paid.
ii. The handwriting in the handwritten portions in Ex.PW9/A is different from that in Mark PW9/1.
iii. In Ex.PW9/A, there is no signature or stamp of any officer of DDA, whereas in mark PW9/1, there is signature and stamp purported to be of Supdt. DDA on each page.
CC No. 06/12 & ID No. 64/19 Page 125 of 402
State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 iv. On the back side of the last page of Mark PW9/1, the stamps purported to be of the office of Sub Registrar are different from those affixed on Ex.PW9/A. v. The signatures purported to be of SubRegistrar on Mark PW9/1 are different from those on Ex.PW9/A. vi. There is also difference in the colour of the paper of Mark PW9/1 and Ex.PW9/A. vii. In paraII (1) on page 3 of Ex.PW9/A, the date mentioned is "twenty second day of July one thousand nine hundred and seventy three"
whereas in Mark Pw9/1 in paraii (1) on page 3, in the date the word "July" is missing.
104.1. This witness was crossexamined by Ld. Counsel for A2 and he stated that he was posted in the office of SubRegistrar, Asaf Ali Road in the year 2004 and he remained there for less than a year. He was never posted there before the year 2004. He has no knowledge or experience in Forensic Science. He cannot tell as to who has signed as SubRegistrar on Ex.PW9/A. The said document was not registered in his presence. He had stated out the differences in Ex. PW9/A and Mark PW9/1 on the basis of what is visible. He denied the suggestion that he has deposed at the instance of CBI. 104.2. This witness was also crossexamined by Ld. Counsel for A8 and he was suggested that all the registered documents were not pasted on Book1, Vol. No. 3177 when the same was produced before the Court which he denied. CC No. 06/12 & ID No. 64/19 Page 126 of 402
State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 He stated that he had not submitted a copy of the original perpetual Sublease deed dated 03.07.1973 to the CBI. He denied the suggestion that he had handed over a copy of original perpetual Sublease Deed dated 03.07.1993 to the CBI. He does not know whether any other person from their office had handed over the same to CBI. He further denied the suggestion that he was deposing falsely at the behest of CBI.
105. As such, Ld. Defence Counsels have challenged the competency of PW9 to analyze the contents of the document or to opine about the words or writing for want of expertise vis a vis he had no personal knowledge for want of registration of the document in his presence. However, the witness was not suggested by either Ld. Defence Counsels that Ex.PW9/A is not the true copy of original Perpetual Sub Lease Deed dated 03.07.1973 executed between President of India and Ms. Stella Anima Biswas or that on the basis of differences pointed out by him in two deeds Ex.PW9/A and ExPW9/1, the perpetual sub Lease Ex.PW9/1 cannot be said to be forged. Though he could not tell the name of the Sub Registrar who signed the Deed Ex.PW9/A and the same was also not registered in his presence, but merely for want of knowledge of the witness regarding registration of the document Ex.PW9/A, the same cannot be termed as a procured document which otherwise was produced from CC No. 06/12 & ID No. 64/19 Page 127 of 402 State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 the Registrar Office. His deposition that Ex.PW9/A is the copy of original Perpetual Sub Lease Deed dated 03.07.1973 and mark PW9/1 is not true copy of Ex.PW9/A could not be impeached by both the Ld. Defence Counsels. There is also nothing in the crossexamination of this witness to suggest that he was planted witness of the CBI as suggested to him.
106. Another witness examined by the prosecution is PW45 Sh. Lalit Mohan who in the year 2004 was working as Assistant in the office of Co operative Society, CBlock, 2nd floor, Vikas Sadan, INA, New Delhi. He deposed that the CBI had made enquires from him with regard to property No. B65, Paschimi Marg, Vasant Vihar, New Delhi as the said property was related to their society. Vide seizure memo Ex. PW45/A, the CBI had seized the office copy of perpetual sub lease deed dated 03.07.1973 (D3) which is Ex. PW45/B. He was shown one more copy of perpetual sub lease deed dated 03.07.1973 Ex. PW12/OOO related to same property in the CBI office and after comparing the same with office copy Ex. PW45/B, he had opined that the document Ex. PW12/OOO is a forged document.
107. This witness was not crossexamined at all by any of the accused persons and thus his aforesaid testimony has gone unrebutted and unchallenged.
108. From the testimony of PW9 Sh. Ramesh Chand and PW45 CC No. 06/12 & ID No. 64/19 Page 128 of 402 State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 Sh. Lalit Mohan, the prosecution has been able to prove that the Perpetual Sub lease Deed dated 03.07.1973 Ex.PW12/OOO (also Mark PW9/1) in respect of property No. B65, Paschimi Marg, Vasant Vihar, New Delhi submitted by M/s Gaaman Global Exports while availing enhancement of credit facilities from Rs. 65 lakhs to Rs. 125 lakhs is a forged document and Ex.PW9/A (also Ex.PW45/B) is the copy of original Perpetual Sublease Deed dated 03.07.1973 executed by President of India in favour of Ms. Stella A Biswas.
109. The letter Ex.PW12/PPPP by which Ms. Stella A. Biswas had allegedly offered her property as equitable mortgage was not in her handwriting as per CFSL report/expert opinion Ex.PW41/U. The handwritings encircled in red on letter Ex.PW12/PPPP at point Q11 were shown to be of Ms. Stella A Biswas. Similarly, handwriting at point Q29 on D7 (XXXIII) and at point Q 35 on Net Worth Statement Ex.PW12/BBBBB were shown to be of Ms. Stella A.Biswas. PW41 Sh. M.C. Jain, the GEQD vide his opinion Ex.PW41/U has opined that, "the writings and signatures in the enclosed portion stamped and marked Q11, Q29, Q35 and S6 to S10 and S55 to S97 (specimen signatures of accused Arvind Johri) have been written by one and the same person". Meaning thereby handwriting on the above documents purported to be of Ms. Stella A. Biswas were actually of A1 Arvind Johri and not of Ms. Stella CC No. 06/12 & ID No. 64/19 Page 129 of 402 State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 A. Biswas.
110. It is also to be noted that since the property was allotted to Ms. Stella A. Biswas on the Perpetual SubLease basis by the Delhi Administration/DDA/lessor and Clause 6 (c) of the Perpetual Sub Lease dated 03.07.1973 along with its other sub clauses, restrict the sub lessee Ms. Stella A. Biswas for mortgaging the property to any other third person without the previous consent in writing from the lessor. Hence, in the present case if Ms. Stella A. Biswas intended to create any kind of mortgage in favour of the bank, she was required to obtain in writing the mortgage permission from the DDA in favour of bank/branch so as to enable her to offer her subleased property to form subject matter of any loan transaction or collateral security in any financial assistance/loan account in the name of any third person.
111. PW10 Sh. M.C. Singhal, who was posted as Dy. Director, Cooperative Society and Group Housing Branch, DDA, Vikas Sadan in the year 2013 deposed that a letter dated 24.4.2003 Ex.PW10/B (Colly) was received from Ms. S.A. Biswas with request/for permission to mortgage property B65, Paschimi Marg, Vasant Vihar, New Delhi and the letter was accompanying photocopies of correspondence dated 26.5.1985 of LIC, another letter dated 10.5.1985 of LIC, house tax receipt no. 370093, assessment order dated CC No. 06/12 & ID No. 64/19 Page 130 of 402 State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 13.1.1999, no dues certificate dated 28.1.1999 and original letter dated 24.4.2003 of Punjab National Bank and on the basis of that record, PW10 had issued conditional letter dated 19.05.2003 Ex. PW10/A under his signature that permission of Lieutenant Governor of Delhi for equitable mortgage of plot no. 65, BlockB, Pashchimi Marg, Delhi was conveyed in favour of Punjab National Bank, New Rohtak Road, New Delhi and this permission for mortgage was issued considering the request from party, consent of concerned bank and NOC from any authority in favour of which the property in question had been earlier mortgaged.
112. However, NOC dated 10.05.1985 & 26.05.1985 annexed with the letter dated 24.4.2003 Ex.PW10/B (Colly) on the basis of which mortgage permission was granted to mortgage the property with PNB, NRB were forged. PW20 Sh. N.P. Nidaria, who in the year 2004 was posted as Manager Legal in Legal and Housing Property Finance Department of LIC, Delhi Divisional Office at 25, KG Marg, Cannaught Place, New Delhi deposed that NOC dated 26.05.1985 and NOC dated 10.05.1985/28.05.1993 in respect of loan account No. 15/2279 in the name of Smt. S.A. Biswas not issued by them as per their record.
113. This witness was not crossexamined by any of the accused persons CC No. 06/12 & ID No. 64/19 Page 131 of 402 State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 and his testimony has remained unchallenged. Thus, it is clear that even mortgage permission in respect of property No. B65, Paschimi Marg, Vasant Vihar, New Delhi was obtained fraudulently on the basis of forged NOCs.
114. All it goes to show that Ms. Stella A. Biswas never stood guarantor against the loan availed by M/s Gaaman Global Exports and all the guarantee documents purported to be executed by her viz. Agreement of guarantee dated 13.02.2003 Ex.PW12/FFFF, Affidavit cum undertaking dated 13.02.2003 Ex.PW12/WWWW, Guarantor information dated 13.02.2003 Ex. PW12/AAAAA, Net worth statement Ex.PW12/BBBBB were not signed by her and someone has forged her signatures on these documents.
115. As per claim of the prosecution, A6 Margrate A. Anthony (since deceased) impersonated herself as Stella A Biswas and executed the guarantee documents as owner of property No. B65, Paschimi Marg, Vasant Vihar, New Delhi, however the prosecution has not led any evidence to prove the same and in the absence of any evidence, the said claim of the prosecution has remained unsubstantiated. However, fact of the matter remains that Ms. Stella A. Biswas was impersonated by someone.
116. The other guarantors, namely, Smt. Shanti Devi was shown to have executed letter of continuity dated 14.02.2003 Ex.PW2/H and Smt. Ram CC No. 06/12 & ID No. 64/19 Page 132 of 402 State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 Rakhi was shown to have executed letter of continuity dated 14.02.2003 Ex.PW5/I. Both have also been shown to have jointly executed Agreement of guarantee dated 08.02.2003. However, it has already been established on record that both Smt. Ram Rakhi and Smt. Shanti Devi never stood guarantor for M/s Gaaman Global Exports and they were impersonated in the bank. Hence, the above guarantee documents shown to be executed by them are apparently forged.
PROPOSAL OF PACKING CREDIT LIMIT FOR RS. 1,25,00,000/ AND SANCTION OF THE SAME
117. As per the case of the prosecution, M/s Gaaman Global Exports through its partner A2 Mahan Mukherjee requested for sanction of Packing Credit Limit for Rs.1,25,00,000/ vide request letter dated 13.02.2003 to meet out their export order received from M/s FDL Global Exports. The said proposal was processed by R.L. Jain, the loan officer at Branch Office and recommended by A8 K.B. Relan, the then Branch Manager for sanction of Packing Credit limit of Rs. 150 lakhs and forwarded the same to Regional Office vide letter dated 28.02.2003. In the Regional Office, the said proposal was processed on 06.03.2003 and sanctioned by Sh. V.K. Sharma, Regional Manager, RO North, CC No. 06/12 & ID No. 64/19 Page 133 of 402 State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 Delhi on 10.03.2003 for a Packing Credit Limit of Rs. 150 lakhs and FOBNLC Limit of Rs. 150 lakhs with overall ceiling of Rs. 150 lakhs on various terms and conditions.
118. The relevant witnesses in this regard are PW12 Sh. R.M. Sachdeva, the then Manager in the Branch Office, PW31 Sh. Vinay Kapoor, the then Chief Manager at Regional Office and PW42 Sh. V.K. Sharma, the then Senior Regional Manager.
119. PW12 Sh. R.M. Sachdeva, upon seeing the file Ex.PW12/H (Colly), has deposed that the application dated 13.02.2003 written by accused Mahan Mukherjee to Senior Manager, PNB, NRB, New Delhi was for Packing Credit Limit for export of Rs.1.25 crores. The letter along with its enclosures i.e. photocopy of letter of FDL Global Limited and their history is Ex.PW12/DDDDD (Colly). He further deposed after seeing the File Ex.PW12/IIIII that letter dated 18.02.2003 of M/s Gaaman Global Exports was written by accused Mahan Mukherjee to Senior Manager, PNB, New Rohtak Road Branch for Packing Credit Limit of Rs.1,48,30,000/ and the same is Ex. PW12/EEEEE. He further deposed after seeing the letter dated 19.02.2003 Ex.PW12/FFFFF that the same was written by accused K.B. Relan to M/s Gaaman Global Exports seeking some information regarding request for CC No. 06/12 & ID No. 64/19 Page 134 of 402 State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 Packing Credit Limit and vide letter Ex. PW12/GGGGG, A2 Mahan Mukherjee submitted certain information and documents to Senior Manager, PNB, New Rohtak Road Branch. He further deposed that gist of proposal by PNB, New Rohtak Road Branch in respect of proposal of M/s Gaaman Global Exports for Packing Credit Limit sent to Regional Office is Ex.PW12/HHHHH. He further deposed that sanction letter dated 10.03.2003 was written by accused Anil Aggarwal, Senior manager (Credit), Regional Office to Senior Manager, NRB, conveying sanction of Packing Credit (against LC) for Rs.150 lakhs and Foreign Outward Bill Negotiated Under LC (FOBNLC) for Rs.150 lakhs and the said letter alongwith its enclosures is Ex. PW12/IIIII (Colly).
120. PW31 Sh. Vinay Kapoor has deposed that vide letter dated 28.02.2003 Ex.PW31/PP, a proposal for packing credit limit/FOBNLC of Rs.150 lakhs was sent by Branch Office to Regional Office. The proposal along with its enclosures is Ex. PW31/QQ (Colly). He further deposed that vide letter dated 04.03.2003 Ex.PW31/RR, the Regional Office made certain observations on the proposal. The said letter bears his initials at point A, initials of accused Anil Aggarwal at point B and initials of Sh. Chhabra at point C. He further deposed that vide letter dated 04.03.2003 Ex.PW31/SS addressed to Sr. Regional Manager, North Delhi, the Branch Office gave reply to various CC No. 06/12 & ID No. 64/19 Page 135 of 402 State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 observations made by Regional Office. He further deposed that process note dated 06.03.2003 of Regional Office for sanction of packing credit and FOBNLC limits is Ex. PW31/TT bearing his signatures at point C, signatures of Sh. Chhabra at point A, signature of Anil Aggarwal at point B and endorsement of Sh. V.K. Sharma at point D who sanctioned the proposal on 10.03.2003. He further deposed that vide letter dated 10.03.2003, the Regional Office conveyed the sanction of packing credit and FOBNLC limits to the Branch office. The letter along with terms and conditions is Ex.PW31/VV (Colly).
121. PW42 Sh. V.K. Sharma has deposed that proposal dated 28.02.2003 Ex.PW31/QQ (Colly) for sanction of Packing Credit/FOBNLC of Rs. 150 lakhs to meet the export orders was received in the Regional Office vide covering letter dated 28.02.2003 Ex.PW31/PP bearing signature of K.B. Relan at point A. The proposal was processed vide process note dated 06.03.2003 Ex. PW31/TT wherein recommendations were made by the Officer (Credit), accused Anil Aggarwal and Sh. Vinay Kapoor for sanction of packing Credit limit of Rs. 150 lakhs, FOBNLC of Rs. 150 lakhs with overall ceiling of Rs. 150 lakhs. The same was sanctioned by him vide his endorsement dated 10.03.2003 at point D on Ex PW31/TT. The sanction was conveyed to the Branch vide letter dated 10.03.2003 Ex.PW31/VV (Colly) bearing signature of Anil Aggarwal. CC No. 06/12 & ID No. 64/19 Page 136 of 402
State vs. Arvind Johri. & Ors Judgment dt.18.10.2022
122. In the crossexamination of these witnesses, the accused persons have not disputed the facts as deposed by them, which otherwise were not in dispute. In view of the same, it stands proved that M/s Gaaman Global Exports through its partner A2 Mahan Mukherjee approached the New Rohtak Road Branch of Punjab National Bank for sanction of Packing Credit Limit of Rs. 1.25 crores vide application dated 13.02.2003 Ex.PW12/DDDDD (Colly) to meet the export orders received from M/s FDL Global Exports, London. Vide another letter dated 18.02.2003 Ex.PW12/EEEEE, M/s Gaaman Global Exports through Mahan Mukherjee requested for sanction of Packing Credit Limit of Rs.1,48,30,000/. On the said request of M/s Gaaman Global Exports, certain information/documents were required by the Branch office to be submitted by M/s Gaaman Global Exports which were provided by Mahan Mukherjee and ultimately, gist of proposal Ex.PW12/HHHHH was prepared by the Branch Office in respect of proposal of M/s Gaaman Global Exports and A8 K.B. Relan vide letter dated 28.02.2003 Ex.PW31/PP recommended the Packing Credit Limit of Rs. 150 lakhs to M/s Gaaman Global Exports to meet its export orders and sent the proposal dated 28.02.2003 Ex.PW31/QQ (Colly) to Regional Office for sanction. It further stands proved that in the Regional Office, the proposal Ex.PW31/QQ was processed vide process note dated 06.03.2003 CC No. 06/12 & ID No. 64/19 Page 137 of 402 State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 Ex.PW31/TT wherein recommendations were made by the Officer (Credit), accused Anil Aggarwal and PW31 Sh. Vinay Kapoor for sanction of packing Credit limit of Rs. 150 lakhs, FOBNLC of Rs. 150 lakhs with overall ceiling of Rs. 150 lakhs. The same was sanctioned by PW42 Sh. V.K. Sharma, the then Senior Regional Manager on 10.03.2003 vide his endorsement at point D on process note Ex.PW31/TT. It is also proved that the sanction was conveyed to the Branch vide letter dated 10.03.2003 Ex.PW12/IIIII [(also Ex.PW31/VV (Colly) in file Ex.PW31/DD (Colly)]by A10 Anil Aggarwal.
SUBMISSION OF FORGED DOCUMENTS IN RESPECT OF PROPERTY BEARING NO. 284A, NEW FRIENDS COLONY, NEW DELHI OWNED BY SH. ANIL KUMAR JAGGI AND EXECUTION OF FORGED GUARANTEE & DOCUMENTS BY IMPERSONATORS
123. As per the terms and conditions of the sanction letter Ex.PW31/VV (Colly), the facilities of the Packing Credit Limit of Rs. 150 lakhs and FOBNLC of Rs. 150 lakhs was to be collaterally secured by (i) extension of equitable mortgage of A208, Old Gupta Colony, Vijay Nagar, Delhi owned by Smt. Ram Rakhi, (ii) extension of equitable mortgage of N154, Greater Kailash, PartI, New Delhi and equitable mortgage of property bearing No. B65, Paschimi Marg, Vasant Vihar, New Delhi owned by Ms. Stella A. Biswas and personal CC No. 06/12 & ID No. 64/19 Page 138 of 402 State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 guarantee of Smt. Ram Rakhi, Smt. Shanti Devi, A1 Arvind Johri, Smt. Shefali Mukherjee (mother of A2 Mahan Mukherjee), A. Banerjee (fatherinlaw of A2 Mahan Mukherjee) and Smt. Stella A. Biswas. The case of prosecution is that since permission to mortgage the property bearing No. B65, Paschimi Marg, Vasant Vihar, New Delhi was not received from the DDA, therefore M/s Gaaman Global Exports offered mortgage of another property bearing No. A284, New Friends Colony, New Delhi as collateral security till the permission to mortgage the Vasant Vihar property was received.
124. PW12 Sh. R.M. Sachdeva has deposed, in this regard, that vide letter Ex. PW12/JJJJJ, accused Mahan Mukherjee requested the Senior Manager, PNB, NRB, New Delhi for release of Packing Credit Limit against F/LC and had offered collateral security of property No. A284, New Friends Colony, New Delhi of Sh. Anil Kumar Jaggi in place of property No. B65, Paschimi Marg, Vasant Vihar, New Delhi. Office copy of letter dated 07.04.2003 written by accused K.B. Relan to SRM, North Delhi Region intimating that the party had offered collateral Security of property No. A284, New Friends Colony, New Delhi since the party apprehended delay in obtaining permission to mortgage by DDA is Ex.PW12/UUUUU.
125. PW31 Sh. Vinay Kapoor, the then Chief Manager at Regional CC No. 06/12 & ID No. 64/19 Page 139 of 402 State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 Office has also deposed that letter dated 07.04.2003 Ex.PW31/WW of Branch Office, NRB addressed to SRM informing creation of charge over property No. A284, Friends Colony, New Delhi was received at the Regional Office.
126. There is no dispute by the accused persons to the fact that property No. A284, New Friends Colony, New Delhi of Sh. Anil Kumar Jaggi was offered as collateral security after sanction of Packing Credit Limit of Rs. 150 lakhs in place of property No. B65, Paschimi Marg, Vasant Vihar, New Delhi as permission to mortgage the said property was not received from the DDA till then.
127. The accused persons have also not disputed the execution of loan documents at the Branch Office pursuant to sanction of Packing Credit Limit of Rs. 150 lakhs by the Regional Office vide sanction letter dated 10.03.2003.
128. As per PW12 Sh. R.M. Sachdeva, following loan documents were executed by borrower and guarantors :
1. Packing Credit Agreement : Ex. PW12/LLLLL.
(Hypothecation) dated 13.03.2003
executed by accused Rajendra S.
Raikwar and Mahan Mukherjee
2. Undertaking dated 13.03.2003 executed : Ex. PW12/MMMMM by accused Mahan Mukherjee and CC No. 06/12 & ID No. 64/19 Page 140 of 402 State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 Rajendra S. Raikwar
3. Agreement of FOBNLC limit dated : Ex. PW12/NNNNN 13.03.2003 executed by accused Rajendra S. Raikwar and Mahan Mukherjee
4. Supplementary agreement dated : Ex. PW12/OOOOO 13.03.2003 executed by accused Mahan Mukherjee and Rajendra S. Raikwar and signed on behalf of the bank by accused K.B. Relan
5. Supplementary Partnership Deed dated : Ex. Pw12/PPPPP.
13.03.2003 executed by accused Mahan Mukherjee and Rajendra S. Raikwar
6. Agreement of Guarantee dated : Ex. PW1/K. 05.04.2003 purportedly executed by Sh. Anil Kumar Jaggi and signed on behalf of the bank by accused K.B. Relan and witnessed by Sh. Rajeev Kumar and Sh. Ashok Ramchandani
7. Agreement of guarantee dated : Ex. PW5/M. 15.03.2003 purportedly executed by Smt. Ram Rakhi and signed on behalf CC No. 06/12 & ID No. 64/19 Page 141 of 402 State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 of the bank by accused K.B. Relan and witnessed by Sh. Rajeev Kumar and Sh. Ashok Ramchandani
8. Agreement of guarantee dated : Ex. PW12/VVVVV 29.03.2003 purportedly executed by Ms. S.A. Biswas and signed on behalf of the bank by accused K.B. Relan and witnessed by Sh. Rajeev Kumar and Sh. Ashok Ramchandani
9. Agreement of guarantee dated : PW12/WWWWW 05.04.2003 executed by Sh. A. Banerjee and signed on behalf of the bank by accused K.B. Relan and witnessed by Sh. Rajeev Kumar and Sh. Ashok Ramchandani
10. Agreement of guarantee dated : Ex. PW12/XXXXX 07.04.2003 executed by Arvind Johri and signed on behalf of the bank by accused K.B. Relan and witnessed by Sh. Rajeev Kumar and Sh. Ashok Ramchandani
11. Agreement of guarantee dated : Ex. PW2/L CC No. 06/12 & ID No. 64/19 Page 142 of 402 State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 07.04.2003 purportedly executed by Smt. Shanti Devi and signed on behalf of the bank by accused K.B. Relan and witnessed by Sh. Rajeev Kumar and Sh. Ashok Ramchandani
12. Letter of continuity dated 07.04.2003 : Ex. PW1/D. purportedly executed by Sh. Anil Kumar Jaggi
13. Letter of continuity dated 31.03.2003 : Ex. PW12/DDDDDD purportedly executed by Ms. S.A. Biswas
129. The prosecution, however, has alleged that Sh. Anil Kumar Jaggi, owner of the property No. A284, New Friends Colony, New Delhi had never mortgaged his property with Punjab National Bank, New Rohtak Road Branch, New Delhi against the Packing Credit limit availed by M/s Gaaman Global Exports and Mahan Mukherjee and other accused persons in furtherance to the criminal conspiracy submitted false/forged Conveyance Deed and Perpetual Sub Lease Deed of the said property. The prosecution has further alleged that A11 Surender Kapoor in criminal conspiracy with Mahan Mukherjee, Arvind Johri CC No. 06/12 & ID No. 64/19 Page 143 of 402 State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 and other accused persons impersonated himself as Anil Kumar Jaggi and executed loan documents in the bank against the packing credit facilities availed by M/s Gaaman Global Exports.
130. In order to prove its case, the prosecution has examined Sh. Anil Kumar Jaggi himself, owner of the property No. A284, New Friends Colony, New Delhi as PW1. He deposed that the property bearing No. A284, New Friends Colony, New Delhi was transferred in his name in the year 1989. Earlier it was in the name of his uncle Sh. Surender Lal Bodhraj. He further deposed that he never mortgaged the above property with Punjab National Bank, New Rohtak Road Branch, New Delhi or to any other bank. He did not know the company M/s Gaaman Global Exports or any Director thereof or any accused person. He further deposed that the original conveyance deed and other title documents in respect of property No. A284, New Friends Colony, New Delhi were earlier kept with his father Sh. M.L. Jaggi. However, a fraud had taken place with Canara Bank in respect of the said property and CBI had seized the title documents in respect of said property from his residence. 130.1. He further deposed that original Conveyance Deed dated 23.06.1998 in respect of above property executed between DDA and his father Sh. M.L. Jaggi as his attorney is Ex.PW1/A. It bears his photograph at point A CC No. 06/12 & ID No. 64/19 Page 144 of 402 State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 and photograph of his father at point B and signatures of his father at points C, C1 to C4. He deposed that the original Perpetual SubLease dated 17.12.1981 in respect of above property is Ex. PW1/B bearing signature of his material uncle Sh. Surender Lal at points A, A1 to A6. Having seen the letter dated 11.07.2002 Ex.PW1/C addressed to the Manager, PNB, New Rohtak Road, New Delhi, he has denied his signatures at point Q36. He stated that he has not written the said letter to PNB. He further denied his signature on the letter of continuity dated 07.04.2003 Ex.PW1/D addressed to the Manager, PNB, NRB at point Q37 and stated that he had not written the said letter. He further denied his signatures on affidavit dated 21.06.2002 Ex.PW1/E at points Q38, Q38A, Q39 and Q39A and stated that he never gave the said affidavit. He further denied his signature on Special Power of Attorney dated 02.06.1998 Ex.PW1/F and stated that the signature at point A and A1 purported to be of him are not his signatures and he had not given the said special power of attorney. Having seen the Conveyance Deed dated 23.06.1998 Ex.PW1/G purportedly executed between DDA and Sh. Surender Lal through his attorney Sh. Anil Kumar Jaggi, he stated that he had never executed any such Conveyance Deed. He has denied signature of his father Sh. M.L. Jaggi at points Q390, Q392, Q394, Q397, Q 398, Q400 and Q401. He deposed that Ex.PW1/G bears two photographs on CC No. 06/12 & ID No. 64/19 Page 145 of 402 State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 the first page at points A & B and neither of these is his photograph or his father's photograph or his uncle Sh. Surender Lal's photograph. He also denied signatures of his maternal uncle Sh. Surender Lal on General Power of Attorney dated 09.02.1992 Ex.PW1/H purportedly executed by Sh. Surender Lal in his favour; on the affidavit dated 09.04.1982 Ex.PW1/I purportedly executed by Sh. Surender Lal and on the Perpetual Sub Lease Deed dated 17.12.1981 Ex.PW1/J at points Q418, Q421, Q424, Q427, Q430 and Q433.
131. Having seen the Agreement of Guarantee dated 05.04.2003 purportedly executed between him and Punjab National Bank Ex.PW1/K, he stated that the same signatures purported to be of him at points Q267 to Q278 and points A and A1 are in Hindi and the same are not his signatures. He stated that he never sign in Hindi. He deposed that the above documents Ex.PW1/C to Ex.PW1/K are forged documents and have neither signed/executed by him or his father Sh. M.L. Jaggi or his maternal uncle Sh. Surender Lal. He further deposed that his specimen signatures on 5 sheets Mark S98 to S102 were taken on 19.05.2004 and the same are Ex. PW1/L (Colly) and his specimen signatures on 11 sheets Mark S103 to S113 were taken on 15.12.2006 and the same are Ex.PW1/M (Colly).
132. PW1 was subjected to crossexamination by A2 Mahan CC No. 06/12 & ID No. 64/19 Page 146 of 402 State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 Mukherjee & A8 K.B. Relan. In his crossexamination by Ld. Counsel for A2, he stated that in his statement to the CBI, there is no mention of the documents Ex.PW1/B to Ex.PW1/M. He stated that the original conveyance deed was taken by the CBI from his father when they came to their residence in a similar case of fraud with Canara Bank. He further stated that his father's specimen signatures were also taken by the CBI. The same were taken after his specimen signatures were taken. He did not know whether specimen signatures of his material uncle Shri Surender Lal were taken or not. A suggestion was put to him that he had manipulated the above forged documents in connivance with the bank officials which he denied. He further denied the suggestion that by using the said document, he has taken loan from other Banks.
133. His crossexamination by A8 K.B. Relan was with regard to the visit of property dealer, tenant and bank officials to his property.
134. From the aforesaid crossexamination of the witness, it is clear that nothing material has come out to impeach his aforesaid testimony. Though the witness was suggested by A2 Mahan Mukherjee that he manipulated the forged documents in connivance with the bank officials and on the basis of said forged documents he had taken loan from other banks which suggestion was denied by him, but except putting suggestion to the witness, A2 Mahan Mukherjee has not CC No. 06/12 & ID No. 64/19 Page 147 of 402 State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 led any evidence or produced any material to show that PW1 Sh. Anil Kumar Jaggi himself has manipulated the documents and has obtained loan from the banks on the basis of said forged documents. The deposition of the witness that he had never mortgaged his property with Punjab National Bank and that documents Ex.PW1/C to Ex.PW1/K are forged documents has remained unshaken.
135. The deposition of PW1 that letter Ex.PW1/C does not bear his signature at point Q36; that Letter of Continuity dated 07.04.2003 Ex.PW1/D does not bear his signature at point Q37;that Affidavit dated 21.06.2002 Ex.PW1/E does not bear his signatures at points Q38, Q38A, Q39, Q39A and that Agreement of Guarantee dated 05.04.2003 Ex.PW1/K does not bear his signatures at points Q267 to Q278 is corroborated by expert opinion Ex.PW41/U which was also not challenged by any of the accused persons. PW41 Sh. Sh. M.C. Jain, the GEQD upon examination and comparison of specimen signatures of Sh. Anil Kumar Jaggi Mark S98 to S102 Ex. PW1/L (Colly) and S103 to S113 Ex.PW1/M (Colly) with his purported signatures on the disputed documents has opined that the person who wrote blue enclosed signatures stamped and marked S98 to S113 did not write the red enclosed signatures similarly stamped and marked Q36, Q37, Q38, Q38A, Q39, Q CC No. 06/12 & ID No. 64/19 Page 148 of 402 State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 39A and Q267 to Q278.
136. Another witness examined by the prosecution is PW15 Sh. R.K. Sharma who in June 1998 was posted as Lease Administration Officer in DDA. He deposed that CBI made inquiries from him with regard to property No. A 284, New Friends Colony, New Delhi in the year 20022003. He further deposed that the Conveyance Deed dated 23.06.1998 Ex.PW1/A was executed by him in favour of Sh. Surender Lal through his Attorney Sh. Anil Kumar Jaggi. The said document bears his signatures at point D, D1 to D4. He further deposed that at the time of execution of conveyance deed Sh. M.L. Jaggi, father of Sh. Anil Kumar Jaggi had appeared and his photograph is at point B on Ex. PW1/A. He further deposed that Sh. M.L. Jaggi was having a special Power of Attorney from Sh. Anil Kumar Jaggi and he had signed in his presence at points C1 to CS.
137. He was shown another conveyance deed dated 23.06.1998 Ex.PW1/G and on comparison he found conveyance deed Ex.PW1/A as original whereas Ex.PW1/G was not genuine. He deposed that Ex.PW1/G neither bears his seal nor signature nor it bears photograph of Sh. M.L. Jaggi.
138. This witness was subjected to crossexamination by A2 Mahan Mukherjee and A8 K.B. Relan.
CC No. 06/12 & ID No. 64/19 Page 149 of 402
State vs. Arvind Johri. & Ors Judgment dt.18.10.2022
139. In his crossexamination by Ld. Counsel for A2 Mahan Mukherjee, he stated that he did not know when Sh. Anil Kumar Jaggi had applied for conversion of the property to freehold rights. He further stated that Sh. M.L. Jaggi was having the Special Power of Attorney in his favour and Sh. M.L. Jaggi had shown him the Special Power of Attorney on the day when conveyance deed was executed. He further stated that Sh. M.L. Jaggi had produced his ID documents. He did not remember what ID documents he had shown. He had not got his ID documents verified and had accepted whatever documents were shown to him by Sh. M.L. Jaggi. He was not knowing M.L. Jaggi earlier. He further stated that he is a Bachelor of Arts and had no qualification in Forensic Science. He denied the suggestion that he has deposed at the instance of CBI or that he does not know anything about this case.
140. In his crossexamination by Ld. Counsel for A8, he stated that he did not remember whether the Power of Attorney produced by Sh. M.L. Jaggi was having photograph of either Sh. M.L. Jaggi or Sh. Anil Kumar Jaggi. He had identified Sh. M.L. Jaggi on the basis of ID documents shown by him. He did not remember what ID documents were shown by Sh. M.L. Jaggi. He categorically stated that on Conveyance Deed, photographs of the person executing the Power of Attorney and the person in whose favour it is executed CC No. 06/12 & ID No. 64/19 Page 150 of 402 State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 are pasted. He stated that he did not know who has signed on Ex PW1/G. He voluntarily stated that it does not bear his signature.
141. From this crossexamination of the witness, it appears that A2 & A8 have tried to dispute the identity of Sh. M.L. Jaggi, father of Sh. Anil Kumar Jaggi who signed the Conveyance Deed Ex.PW1/A as attorney of Sh. Anil Kumar Jaggi, however it was not the case of both the accused persons that the identity documents shown by Sh. M.L. Jaggi to this witness at the time of execution of Conveyance Deed Ex.PW1/A or SPA executed by Sh. Anil Kumar Jaggi in favour of Sh. M.L. Jaggi were forged. Not a single suggestion was put to the witness in this regard by either of the Ld. Defence Counsels. Nothing contrary has come out in the crossexamination of this witness to suggest that he was a planted witness by the CBI.
142. PW41 Sh. M.C. Jain also opined vide his expert opinion Ex.PW41/U that Conveyance Deed Ex.PW1/G does not bear signatures of PW15 Sh. R.K. Sharma at points Q389, Q391, Q393, Q395 & Q396 after comparing the specimen signature of Sh.R.K. Sharma taken during course of the investigation marked S114 to S122 with his disputed signatures on the Conveyance Deed Ex.PW1/G. The expert opinion Ex.PW41/U which was not challenged by any of the accused persons, thus, corroborates the testimony of CC No. 06/12 & ID No. 64/19 Page 151 of 402 State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 PW15 Sh. R.K. Sharma that he has not executed the Conveyance Deed Ex.PW1/G and the same also does not bear his signatures.
143. Next witness examined by the prosecution is PW16 Sh. Sanjay Kumar Rawat who during the period 20062007 was posted as UDC in the office of Sub RegistrarV, Mehrauli, New Delhi. He upon seeing the Conveyance Deed dated 23.06.1998 in respect of aforesaid property in the file brought by Sh. Bhagwant Singh, UDC, Sub Registrar OfficeV, Mehrauli, New Delhi, copy of which is Ex.PW16/A and another Conveyance Deed dated 23.06.1998 Ex.PW1/G, the witness deposed that both the conveyance deeds Ex. PW16/A and Ex. PW1/G are with respect to the same property and have been executed between the same parties. However, in Ex.PW1/G, the photographs of both the parties are different from those in the original conveyance deed Ex.PW16/A. The signature of Sub Registrar in Ex.PW1/G is also different from Ex.PW16/A. The handwriting in the body of the conveyance deed Ex.PW1/G is also different from that of Ex.PW16/A. The seal of the Lease Administration Officer affixed on Ex.PW1/G is also different from that affixed on Ex.PW16/A. On comparison of both the conveyance deeds, the witness deposed that Ex.PW1/G is not a genuine document as per their record.
144. This witness was crossexamined only by A2 Mahan Mukherjee. CC No. 06/12 & ID No. 64/19 Page 152 of 402
State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 In his crossexamination by Ld. Counsel for A2, he stated that he has no qualification or experience in Forensic Science and he has deposed about the differences in the two documents i.e. Ex.PW1/G and Ex.PW16/A on the basis of his general observation. He denied the suggestion that he had deposed at the instance of CBI.
145. From this crossexamination of the witness, A2 Mahan Mukherjee again could not establish that Ex.PW1/G is a genuine document. The witness though had no qualification or experience in Forensic Science and the differences pointed out by him in the two documents i.e. Ex.PW1/G and Ex.PW16/A were on the basis of his general observation but the witness was not suggested that on the basis of said differences Ex.PW1/G cannot be said to be a forged document. Rather it was nowhere case of the accused persons that Ex.PW1/G was a genuine document.
146. PW36 Sh. D.C. Sharma who was posted as Assistant in Cooperative Society Branch, Vikas Sadan, INA, New Delhi in the year 2004 further corroborates the factum of forgery of Conveyance Deed Ex.Pw1/G. He deposed that he was called by the CBI for inquiry regarding property No. A284, New Friends Colony. Vide seizure memo Ex. PW36/A, he handed over the documents to the CBI. He stated that the Perpetual Sub Lease Deed dated CC No. 06/12 & ID No. 64/19 Page 153 of 402 State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 17.12.1981 Ex.PW1/B is the same which was seized by the CBI vide seizure memo Ex.PW36/A. Ex.PW1/A is the office copy of the Conveyance Deed dated 23.06.1998 maintained in their office and this was also seized by the CBI. He further deposed that Ex.PW1/A bears signature of Sh. R.K. Sharma, the then Lease Administration Officer at points D, D1 to D4. He identified his signature since he had seen documents signed by him during his official course of duty and he had also served under him. Ex. PW1/A also bears signatures of Sh. Maqsudan Lall Jaggi at point C, C1 to C4. He can identify his signatures since he was President of New Friends Cooperative house building society and he used to receive NOCs issued by him during his official course of duty. Ex.PW1/A also bears photograph of Sh. Maqsudan Lall Jaggi at point B.
147. Having seen copy of Perpetual Sub Lease Deed Ex.PW1/J, he stated that this is not a genuine copy of the original Perpetual Sub Lease Deed Ex. PW1/B because of the following reasons: i. The font size in Ex. PW1/J is different from the original Perpetual Sub Leas Deed Ex. PW1/B ii. The signatures purported to be of Sh. Surender Lal on Ex. Pw1/J are different from those on the original document i.e. Ex.PW1/B iii. The rubber stamp of Addl/ Secretary on Ex. PW1/J is different from that affixed on Ex. PW1/B. In Ex. Pw1/J, in the rubber stamp, the CC No. 06/12 & ID No. 64/19 Page 154 of 402 State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 word 'Secretary' has been spelt as "Secretory which is wrong. iv. The signatures purported to be of Sh. I.K. Sharma on Ex. PW1/J are different from his original signatures on Ex. PW1/B. v. All the impressions of rubber stamps on Ex. Pw1/J appears to be new and clear unlike the impressions of Govt. rubber stamps on Ex. PW1/B, which had become spread out due to more usage.
vi. In Ex. PW1/B, one of the witness is Sh. S.K. Ralra, again whose name word "Supdt" is written. However, the same is not written in Ex.PW1/J .
vii. The handwriting in Ex.PW1/J is different from that in Ex.PW1/B.
148. Similarly, having seen copy of Conveyance Deed Ex. PW1/G, he stated that this is not a genuine copy of the original Conveyance deed Ex.PW1/A because of the following reasons: i. The photographs purported to be of Sh. Maqsudan Lall Jaggi and Sh. Anil Jaggi affixed on Ex.PW1/G are not of Sh. Maqsudan Lall Jaggi or Sh. Anil Jaggi. These are different from photographs of Sh. Maqsudan Lall Jaggi and Sh. Anil Jaggi affixed at points at B and A on Ex. PW1/A. ii. Ex.PW1/G does not bear signatures of Sh.R.K. Sharma, the then Lease Administration Officer.
iii.All the impression of rubber stamps on Ex. PW1/G appears to be new and clear unlike the impression of Govt. rubber stamps on Ex. PW1/A, which had become spread out due to more usage.
CC No. 06/12 & ID No. 64/19 Page 155 of 402
State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 iv. The handwriting in Ex. PW/G is different from that in Ex. Pw1/A. v. The signatures purported to be of Sh. Maqsudan Lall Jaggi on Ex.PW1/G are different from his original signatures on Ex.PW1/A.
149. This witness was subjected to crossexamination by A8 K.B. Relan only and in his crossexamination he stated that when any sub lessee of a property applies to DDA seeking permission for mortgage of property, he also encloses a letter from the bank regarding the bank's willingness to sanction the loan. Then they check whether the property in question is already mortgaged or is involved in any litigation or not. If there is no dispute about the property, permission to mortgage the same is given.
150. From the aforesaid crossexamination of this witness, it is evident that A8 K.B. Relan did not impeach his aforesaid testimony that the Conveyance Deed Ex.PW1/A is the original Conveyance Deed bearing signatures of Sh.R.K. Sharma, the then Lease Administration Officer at points D, D1 to D4 and Ex.PW1/G is not the true copy of Ex.PW1/A and further that Ex.PW1/B is the original Perpetual Sub Lease Deed and Ex.PW1/J is not the true copy of Ex.PW1/B. The witness was cross examined just to explore about the properties on lease as well as permission to mortgage them or what steps are required for willingness to sanction the loan or permission in case there is CC No. 06/12 & ID No. 64/19 Page 156 of 402 State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 dispute about the property.
151. PW40 Sh. Nakul Chand deposed that he is working as Office Superintendent, New Friends Cooperative House Building Society Ltd. He had known Sh. M.L. Jaggi who was earlier General Secretary and President of the Society. He also knows sons of Sh. M.L. Jaggi including Anil Kumar Jaggi. Sh. M.L. Jaggi was allottee of House No. A283 and A284, New Friends Colony. He is not a witness to the conveyance deed Ex. PW1/G and the same does not bear his signature at point Q399 and the same are forged. The photographs on the said conveyance deed are not of M.L. Jaggi and Anil Kumar Jaggi. He is a witness to execution of conveyance deed Ex. PW1/A and same bears his signature at point E. The photographs affixed at point B and point A on Ex.PW1/A are of Sh. M.L. Jaggi and Sh. Anil Kumar Jaggi respectively. He further deposed that the CBI had taken his specimen signatures marked S123 to S129 on 7 sheets and the same are Ex.PW40/A (Colly).
152. This witness was not crossexamined by any of the accused persons and as such his aforesaid testimony has gone unrebutted and unchallanged. As per GEQD opinion Ex.PW41/U as well, the person who wrote the blue enclosed signatures stamped and marked S123 to S129 (specimen signature of Sh. Nakul Chand) did not write the red enclosed signature similarly stamped and CC No. 06/12 & ID No. 64/19 Page 157 of 402 State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 marked Q399 and it corroborates the statement of this witness that he did not sign the Conveyance Deed Ex.PW1/G as a witness at point Q399.
153. From the testimonies of aforesaid witnesses, the prosecution has successfully proved that Sh. Anil Kumar Jaggi, the owner of the property bearing No. A284, New Friends Colony, New Delhi had never mortgaged his property with New Rohtak Road Branch of Punjab National Bank against the packing credit limit of Rs. 150 lakhs availed by M/s Gaaman Global Exports and the Perpetual Sub Lease Deed Ex.PW1/J and Conveyance Deed Ex.PW1/G submitted by M/s Gaaman Global Exports as title deeds in respect of said property are forged documents. It is also proved that Ex.PW1/A is the original Conveyance Deed dated 23.06.1998 executed between DDA and Sh. M.L. Jaggi as attoreney of Sh. Anil Kumar Jaggi and Ex.PW1/B is the original Perpetual Sub Lease Deed dated 17.12.1981.
154. As Sh. Anil Kumar Jaggi never stood guarantor for M/s Gaaman Global Exports, he cannot be said to have written/executed/signed the documents as a guarantor viz. letter dated 11.07.2002 Ex.PW1/C by which he was shown to have submitted the title deeds of the property to the bank, letter of continuity dated 07.04.2003 Ex.PW1/D, affidavit dated 21.06.2002 Ex.PW1/E, Special Power of Attorney dated 02.06.1998 Ex. PW1/F, which fact is also CC No. 06/12 & ID No. 64/19 Page 158 of 402 State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 corroborated from the GEQD opinion as discussed hereinabove. Hence, these documents are also proved to be forged. It is apparent that someone has forged the signatures of Sh. Anil Kumar Jaggi on these documents.
155. The prosecution has claimed that it was A11 Surender Kapoor who signed these documents while impersonating himself as Anil Kumar Jaggi.
156. The prosecution, in this regard, has examined PW26 Sh. Shankar Lal Gautam who had worked in Deen Dayal Upadhaya Marg Branch of the Canara Bank from the year 2004 to 2007 as an Officer. He has identified the letter dated 24.03.2007 Ex.PW26/A under the signature of Sh. Pathak, AGM, Canara Bank vide which certain documents i.e. certified photocopy of Conveyance deed of property bearing No. A284, New Friends Colony, New Delhi Ex.PW26/B, certified copy of account opening form of A/c No. 31256 in the name of Mahavir Impex Ex.PW26/C, certified copy of specimen signature card of Surender Kapoor Ex.PW26/D, certified copy of guarantee covering letter Ex.PW/E and certified copy of guarantee agreement Ex.PW/F were handed over to the CBI. He deposed that Ex.PW26/B was submitted by the party in their bank in connection with the loan which bears photograph of Surender Kapoor at point B. He further deposed that signature card Ex.PW26/D is with respect to OD Account No. 50569. He has identified the photograph of Surender Kapoor CC No. 06/12 & ID No. 64/19 Page 159 of 402 State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 on the back side of the specimen signature Card Ex.PW26/D at point C apart from photographs of others.
157. Having seen the conveyance deed dated 23.06.1998 Ex. PW1/G, he deposed that the same bears photograph of Surender Kapoor at point A.
158. This witness was subjected to crossexamination by A11 Surender Kapoor only and in the said crossexamination he stated that the account of Mahavir Impex was opened before he joined the Branch and he had dealt with this account as an officer. He further stated that accused Surender Kapoor used to visit the bank and he has seen him there, although he may not have met him personally. He admitted that accused Surender Kapoor had not met him with regard to the loan. He volunteered that Surender Kapoor would have spoken to the Executives and he had been visiting the Branch and he can identify him. He denied the suggestion that accused Surender Kapoor never visited their Branch during his tenure. He did not remember who had introduced accused Surender Kapoor to him. He denied the suggestion that he is deposing at the instance of CBI. He further denied the suggestion that accused Surender Kappoor was never introduced to him.
159. The aforesaid crossexamination of the witness clearly shows that Ld. Counsel for A11 could not assail testimony of this witness regarding CC No. 06/12 & ID No. 64/19 Page 160 of 402 State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 identification of A11 Surender Kapoor. The witness though not has personally met A11 Surender Kapoor but he categorically stated that he can identify Surender Kapoor as he (Surender Kapoor) used to visit their bank and he had seen him (Surender Kapoor).
160. So, from the testimony of this witness, the prosecution has been able to prove that Conveyance Deed Ex.PW1/G in respect of property No. A284, New Friends Colony, New Delhi which has already been proved to be a forged document bears the photograph of Surender Kapoor.
161. PW32 Sh.Rajiv Kumar Mahjan who is one of the witnesses to Conveyance Deed Ex.PW1/G has deposed that the person whose photograph is affixed at point A on Ex.PW1/G had come to the bank for execution of documents. There is no crossexamination of the witness on this point by any of the accused persons.
162. As it has come on record that at point A on Ex.PW1/G, there is photograph of A11 Surender Kapoor, it appears that Sh. Anil Kumar Jaggi was impersonated in the bank by A11 Surender Kapoor. A11 Surender Kapoor has also led evidence in his defence. However, this Court refrains from returning any conclusive finding on this aspect because A11 Surender Kapoor has expired and proceedings against him has already been abated and, therefore, CC No. 06/12 & ID No. 64/19 Page 161 of 402 State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 evaluation of evidence qua him will not serve any purpose. Moreso, it has no bearing qua surviving accused persons.
163. So far the execution of guarantee documents by other guarantors namely, Smt. Ram Rakhi, Smt. Shanti Devi and Ms. Stella A Biswas is concerned, it has already been established on record that none of them had ever mortgaged their respective property with the New Rohtak Road Branch of Punjab National Bank against the loan availed by M/s Gaaman Global Exports at any point of time, therefore question of their signing/executing the guarantee documents pursuant to sanction of packing credit limit to M/s Gaaman Global Exports vide sanction letter dated 10.03.2003 Ex.PW31/VV does not arise. Apparently, these guarantee documents i.e. Agreement of Guarantee dated 15.03.2003 purported to be executed by Smt. Ram Rakhi Ex.PW5/M, Agreement of Guarantee dated 07.04.2003 purportedly executed by Smt. Shanti Devi Ex.Pw2/L, Agreement of guarantee dated 29.03.2003 purported to be executed by Ms. Stella A. Biswas Ex.PW12/VVVVV, letter of continuity dated 31.03.2003 purportedly executed by Ms. S.A. Biswas Ex. PW12/DDDDDD are forged documents and had been executed by impersonators.
164. It is also interesting to note that none of the accused persons either in the crossexamination of the prosecution witnesses or in their respective CC No. 06/12 & ID No. 64/19 Page 162 of 402 State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 statement recorded u/s 313 Cr.P.C. have disputed the factum of submission of forged title documents in respect of aforementioned four properties by M/s Gaaman Global Exports with the bank at the time of availing the cash credit and other facilities as well as execution of guarantee documents by impersonators. It is nowhere case of the accused persons that the title documents submitted by M/s Gaaman Global Exports through its partners were genuine documents and not forged one; and that the guarantors produced in the bank were the real owners and not the impersonators. Meaning thereby, the accused persons themselves have admitted the title documents to be forged one and the guarantee documents to have been executed by the impersonators.
165. As it stands established that the firm M/s Gaaman Global Exports availed various cash credit facilities and other facilities to the tune of Rs.3.36 crore approximately from the PNB, NRB, New Delhi, the prosecution has claimed that the funds so received by the borrower firm from the bank were siphoned off by opening the various accounts in the name of fake firms and transferring the amounts from the loan account of the borrower firm in those accounts. In these facts, it is to be seen as to which all accounts were got opened and by whom and what amount was transferred to those accounts. CC No. 06/12 & ID No. 64/19 Page 163 of 402
State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 OPENING OF ACCOUNT IN THE NAME OF M/S SWASTIK EXPORTS AND FUNDS TRANSFERRED BY M/S GAAMAN GLOBAL EXPORTS IN THE SAID ACCOUNT OF M/S SWASTIK EXPORTS
166. The case of the prosecution is that Arvind Johri and Ashok Mukherjee, partners of M/s Swastik Exports opened a current Account No. 5102 with PNB, NRB and an amount of Rs.10,05,000/ was transferred from the account of M/s Gaaman Global Exports to the account of M/s Swastik Exports. The whole amount was withdrawn in cash and the account was closed on 07.12.2002.
167. The prosecution has examined, in this regard, PW22 Sh. Ramesh Kalia who was posted as Loan Officer in New Rohtak Road Branch of PNB from 24.01.2004 till July 2007. He deposed that Current account No. 5105 in the name of M/s Swastik Exports was opened in the year 2002 vide account opening form Ex.PW22/A. Arvind Johri and Ashok Mukherjee were authorized signatories of M/s Swastik Exports being its partners. Mahan Mukherjee of M/s Gaaman Global Exports maintaining account no. CC 253 was the introducer. He further deposed that three cheques bearing No. 672794 dated 03.08.2002 for Rs. 6 lakhs, No. 645655 dated 10.09.2002 for Rs. 50,000/ and No. 645654 dated 31.08.2002 for Rs. 3,55,000/ Ex. PW22/E to Ex. CC No. 06/12 & ID No. 64/19 Page 164 of 402
State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 PW22/G respectively were issued by M/s Gaman Global Exports in favour of M/s Swastik Exports amount of which were credited in the account of M/s Swastik Exports which is reflected in the statement of account Ex. PW22/D.
168. PW7 Sh. Rajaram Sharma (the Approver) who was an employee in the firm M/s Gaaman Global Exports also deposed that Arvind Johri and his partner Sh. Ashok Mukherjee who was uncle of accused Mahan Mukherjee opened an account in PNB, NRB in the name of M/s Swastik Exports.
169. There is no dispute to the above facts by the concerned accused persons. In view of the same, it stands proved that A1 Arvind Johri (since deceased) and Sh. Ashok Mukherjee, uncle of A2 Mahan Mukherjee, who were partners of M/s Swastk Exports got opened a current Account No. 5105 with PNB, New Rohtak Road Branch in the year 2002 in the name of their firm M/s Swastik Exports vide account opening form Ex. PW22/A, on the introduction of A2 Mahan Mukherjee and the same was closed on 07.12.2002. It also stands proved that an amount of Rs.10,05,000/ was transferred in the said account of M/s Swastik Exports from the loan account of M/s Gaaman Global Exports through cheques during the year 2002, which payments were duly reflected in the Statement of Account Ex.PW22/D as per details given as under : CC No. 06/12 & ID No. 64/19 Page 165 of 402 State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 Sl. No. Cheque No. Date Amount
1. 672794 03.08.2002 Rs.6,00,000/ Ex.PW22/E (also Ex.PW35/B23)
2. 645655 10.09.2002 Rs.50,000/ Ex.PW22/F (also Ex.PW35/C7))
3. 645654 31.08.2002 Rs.3,55,000/ Ex.PW22/G (also Ex.PW35/C8) TOTAL Rs.10,05,000/ OPENING OF ACCOUNT IN THE NAME OF M/S BALAJI TRADING COMPANY IN CITY UNION BANK, KAROL BAGH, NEW DELHI & TRANSFER OF FUNDS IN THE SAID ACCOUNT FROM THE LOAN ACCOUNT OF M/S GAAMAN GLOBAL EXPORTS.
170. The case of the prosecution is that Raja Ram Sharma (the approver), an employee in the firm M/s Gaaman Global Exports got opened a current account No. 451 on 03.01.2003 in the name of M/s Balaji Trading Company with City Union Bank, Karol Bagh, New Delhi and an amount of Rs.16 lakhs approximately was transferred to the said account from the loan account of M/s Gaaman Global Exports, which was subsequently withdrawn in CC No. 06/12 & ID No. 64/19 Page 166 of 402 State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 cash and thereafter the account was closed on 28.04.2003.
171. In order to prove the same, the prosecution has examined Sh. Rajaram Sharma himself as PW7 who deposed that accused Mahan Mukherjee, Sh. Ashok Mukherjee and Arvind Johri, CEO got opened an account through him in the name and style of Balaji Trading Company at City Union Bank, Karol Bagh, New Delhi. While opening the Account, the Account opening form etc. were filled up by Arvind Johri in his hand and the documents submitted along with the Account opening form were also arranged by Arvind Johri. He further deposed that in the account of Balaji Trading Company, a sum of about Rs.16,00,000/ was transferred from the account of M/s Gaaman Global Exports by way of Pay Order, LC etc. He has identified the account opening form of M/s Balaji Trading Company in City Union Bank, Karol Bagh, New Delhi which is Ex.PW7/K bearing his signatures at point B, B1 & B2 and documents in support of that application which were arranged by Arvind Johri i.e. rent agreement Ex. PW7/M and affidavit Ex. PW7/N. He has further identified the letter written to the Manager for closing of the account which is Ex. PW7/O bearing his signature at point A.
172. Another witness examined by the prosecution is PW28 Sh. U. Balasubramanian who had worked in Karol Bagh Branch of City Union Bank in CC No. 06/12 & ID No. 64/19 Page 167 of 402 State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 different capacities. He handed over documents related to account opening form of Balaji Trading Company and the accounts statements from 04.01.2003 to 28.04.2004 to the CBI vide letter dated 20.07.2004 Ex.PW28/A. He deposed that the certified copy of statement of account No. 451 of Balaji Trading Company, which was handed over to CBI vide letter Ex.PW28/A is Ex.PW28/B. He further deposed that vide letter dated 27.07.2004 Ex.PW28/C written by Sh. V.Krishnamurthy, Branch Manager, original debit and credit vouchers along with statement of account were sent through Smt. K. Kamla, Assistant Manager to the CBI. The certified copy of statement of account which was sent vide letter Ex. PW28/C is Ex.PW28/D and the debit vouchers sent vide this letter are Ex.PW7/V1 to Ex. PW7/V15.
173. Having seen the PNB Cheque No. 648595 dated 08.02.2003 Ex.PW28/E issued by M/s Gaaman Global Exports in favour of M/s Balaji Trading Company, he deposed that this cheque was deposited in the bank and it bears the seal of City Union Bank, Karol Bagh dated 10.02.2003 on the backside at point A. He further deposed that Ex. PW28/B shows the entry regarding credit of the said cheque in account No. 451 of Balaji Trading Company at point Mark B. He deposed that Account No. 451 of Balaji Trading Company was introduced by Arvind Johri, partner of Satya Sai International and the proprietor of Balaji CC No. 06/12 & ID No. 64/19 Page 168 of 402 State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 Trading Company is Raja Ram Sharma.
174. There is no dispute by A2 Mahan Mukherjee and A3 Rajendra S. Raikwar to the factum of opening of current account by their employee Raja Ram Sharma in the name of his proprietorship firm M/s Balaji Trading Company and transfer of funds from M/s Gaaman Global Exports to the said current account of M/s Balaji Trading Company as deposed by aforesaid two witnesses.
175. It is, therefore, proved that Raja Ram Sharma, the employee of M/s Gaaman Global Exports got opened a current account No. 451 in City Union Bank, Karol Bagh, New Delhi, which was introduced by A1 Arvind Johri (since deceased), CEO of M/s Gaaman Global Exports who was already having an account in the said bank. It further stands proved that vide cheque Ex.PW28/E (also Ex.PW35/D1) (seized from PW35 Sh. Nirbhay Kumar, Senior Manager during the year 200405 in New Rohtak Road Branch of Punjab National Bank during course of the investigation), an amount of Rs. 6,00,000/ was deposited in the account of said current account of M/s Balaji Trading Company by M/s Gaaman Global Exports, which is duly reflected in Statement of Account Ex.PW28/B at point B. Statement of Account of Current Account No. 253 of M/s Gaaman Global Exports Ex.PW32/E also shows the CC No. 06/12 & ID No. 64/19 Page 169 of 402 State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 corresponding debit entry of Rs. 6,00,000/ on 11.02.2003 through Cheque No. 648595.
176. There is also a draft voucher on record dated 13.03.2003 for Rs. 5,50,000/ of M/s Gaaman Global Exports requesting PNB, New Rohtak Road Branch for issuing cash order in favour of Balaji Trading Company which is Ex.PW35/E4 (seized from PW35 Sh. Nirbhay Kumar, the then Senior Manager in New Rohtak Road Branch of Punjab National Bank during course of the investigation). Statement of Account Ex.PW28/B shows a credit entry of Rs.5,50,000/ in the account of M/s Balaji Trading Company on 17.03.2003 against the said draft voucher Ex.PW35/E4.
177. Though the prosecution has claimed that an amount of Rs. 16,00,000/ approximately has been transferred in the aforesaid current account of M/s Balaji Trading Company from the loan account of M/s Gaaman Global Exports and even PW7 has also deposed to the same effect but as per Statement of Account of M/s Balaji Trading Company Ex.28/B and Statement of Account of M/s Gaaman Global Exports Ex.PW32/E, a total amount of Rs. 11,50,000/ was transferred from the loan account of M/s Gaaman Global Exports to the current account No. 451 of M/s Balaji Trading Company in City Union Bank, Karol Bagh, New Delhi as per details given as under: CC No. 06/12 & ID No. 64/19 Page 170 of 402 State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 Sl. No. Cheque/Draft Date Amount Voucher/PO/LC No.
1. 648595 08.02.2003 Rs. 6,00,000/ Ex.28/E
2. Draft Voucher 13.03.2003 Rs.5,50,000/ Ex.PW35/E4 TOTAL Rs.11,50,000/ OPENING OF ACCOUNT IN THE NAME OF M/S L.B. ENTERPRISES IN CORPORATION BANK, SHALIMAR BAGH, NEW DELHI AND TRANSFER OF FUNDS IN THIS ACCOUNT FROM THE LOAN ACCOUNT OF M/S GAAMAN GLOBAL EXPORTS
178. As per the case of the prosecution, Raja Ram Sharma, the employee in the firm M/s Gaaman Global Exports got opened another account No. 20959 in the name of M/s L.B. Enterprises on 03.01.2003 with Corporation Bank, Shalimar Bagh, Delhi and an amount of Rs.12.87 lakhs approximately was transferred in this account from the account of M/s Gaaman Global Exports which was later on withdrawn. The said account was closed on 18.05.2004.
179. PW7 Raja Ram Sharma deposed, in this regard, that Mahan Mukherjee, Sh. Ashok Mukherjee and Arvind Johri got opened another CC No. 06/12 & ID No. 64/19 Page 171 of 402 State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 company in his name in the name & style of M/s L.B. Enterprises in Corporation Bank, Shalimar Bagh, New Delhi. The said Account was introduced by Sh. Randhir Saluja, Proprietor of Saluja Enterprises who used to supply goods to M/s Gaaman Global Exports and was very well known to Mahan Mukherjee and Arvind Johri. He further deposed that in the account of M/s L.B. Enterprises, a sum of about Rs.12,87,000/ was transferred from the Loan Account of M/s Gaaman Global Exports by way of the cheques, Pay Orders etc. He has identified the Account opening form of M/s L.B. Enterprises in Corporation Bank which is Ex.PW7/P bearing his signatures at point Q308 alongwith proprietorship firm letter Ex. PW7/Q for opening the account filled in by him and documents i.e. Form no.60 Ex. PW7/R, rent agreement Ex. PW7/S and copy of invoice Ex. PW7/T which were arranged by Arvind Johri.
180. PW11 Sh. R.S. Saluja who was working as supplier of rice and broker in the name of M/s Saluja Enterprises deposed that he used to supply rice to M/s Gaaman Global Exports and used to go their office. He further deposed that he introduced the account of M/s L.B. Enterprises of Raja Ram Sharma in the Corporation Bank, Shalimar Bagh, New Delhi on the asking of A1 Arvind Johri and A2 Mahan Mukherjee. He further deposed that Mahan Mukherjee and Arvind Johri had asked him to introduce an account of their employee, namely, CC No. 06/12 & ID No. 64/19 Page 172 of 402 State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 Raja Ram Sharma @ Devgan and in good faith, he introduced the account of M/s L.B. Enterprises.
181. Another witness examined by the prosecution is PW24 Sh. Anil Kumar Malik who in the year 2006 was posted as Officer in Shalimar Bagh Branch of Corporation Bank at New Delhi. He handed over the documents related to Current Account No. 20959 of M/s L.B. Enterprises of which Raja Ram Sharma was the proprietor to the CBI which are account opening form Ex.PW7/P, letter of proprietorship Ex. PW7/Q and computerized statement of accounts of said current account No. 20959 for the period from 05.01.2003 to 31.03.2003, from 01.04.2003 to 31.03.2004 and for the period from 01.04.2004 to 08.07.2004 Ex.PW24/A (Colly).
182. Having seen the Cash Order No. 108535 dated 07.04.2003 Ex.PW24/B, he deposed that the same was issued by PNB in favour of M/s L.B. Enterprises for Rs.12,87,410/ which was deposited in their bank. It bears clearing stamp dated 10.04.2003 of Corporation Bank at point A and the said amount was credited in the account of M/s L.B. Enterprises on the same day and entry in this regard is in Ex.PW24/A (Colly) at point B. He further deposed that the said account was opened on 05.01.2003 and it was introduced by Sh. Randhir Singh Saluja C/o Saluja Enterprises having current account no. 20444 CC No. 06/12 & ID No. 64/19 Page 173 of 402 State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 in their bank.
183. There is also a draft voucher on record dated 08.02.2003 for Rs. 4,00,000/ of M/s Gaaman Global Exports requesting PNB, New Rohtak Road Branch for issuing cash order in favour of M/s L.B. Enterprises which is Ex.PW35/E5 (seized from PW35 Sh. Nirbhay Kumar, the then Senior Manager in New Rohtak Road Branch of Punjab National Bank during course of the investigation). Statement of Account Ex.PW24/A shows a credit entry of Rs.4,00,000/ in the account of M/s L.B. Enterprises on 13.02.2003 against the said draft voucher Ex.PW35/E5.
184. In the crossexamination of these witnesses, A2 Mahan Mukherjee and A3 Rajendra S. Raikwar have not disputed the facts of opening of Current Account in the name of M/s L.B. Enterprises and transfer of funds in the said account from the loan account of M/s Gaaman Global Exports, which fact they have also not disputed in their respective statement recorded u/s 313 Cr.P.C.
185. Hence, from the testimonies of aforesaid prosecution witnesses, it stands proved that Raja Ram Sharma got opened a Current Account No. 20959 in the name of M/s L.B. Enterprises of which he was the Proprietor in Corporation Bank, Shalimar Bagh Branch, New Delhi on 05.01.2003 vide Account Opening Form Ex.PW7/P. The said account was introduced by PW11 CC No. 06/12 & ID No. 64/19 Page 174 of 402 State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 Sh. Randhir Singh Saluja, Proprietor of M/s Saluja Enterprises who used to supply rice to M/s Gaaman Global Exports and was already having a current account in the said bank. It further stands proved that an amount of Rs.16,87,410/ was transferred by M/s Gaaman Global Exports to the said account of M/s L.B. Enterprises as per details given as under which is also reflected in the Statement of Account of M/s L.B. Enterprises Ex.PW24/A (Colly) at point B: Sl. No. PO Date Amount
1. Draft Voucher 08.02.2003 Rs. 4,00,000/ Ex.PW35/E5
2. 108535 07.04.2003 Rs.12,87,410/ Ex.PW24/B TOTAL Rs.16,87,410/ OPENING OF ACCOUNT IN THE NAME OF M/S BALAJI TRADING COMPANY IN INDUSIND BANK, NEHRU PLACE, NEW DELHI AND TRANSFER OF FUNDS IN THIS ACCOUNT FROM THE LOAN ACCOUNT OF M/S GAAMAN GLOBAL EXPORTS
186. The case of the prosecution is that Rajaram Sharma, employee of Mahan Mukherjee and Arvind Johri got opened another Current Account on 27.02.2003 in the name of M/s Balaji Trading Company with IndusInd Bank, CC No. 06/12 & ID No. 64/19 Page 175 of 402 State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 Nehru Place, New Delhi and an amount of Rs. 78 lakhs approximately was transferred in this account of M/s Balaji Trading company from the account of M/s Gaaman Global Exports and thereafter the same was withdrawn in cash.
187. PW7 Raja Ram Sharma deposed that another account of Balaji Trading Company was opened in IndusInd Bank at Nehru Place, New Delhi. In this account also, a sum of about Rs.78,00,000/ was transferred from the loan account of M/s Gaaman Global Exports. He has identified the Account opening Form of Balaji Trading Company in IndusInd Bank, Nehru Place Branch, New Delhi which is Ex.PW7/B and Form No. 60 in respect of said account is Ex. PW7/C.
188. Another witness examined by the prosecution, in this regard, is PW21 Sh. Saurabh Chopra who joined IndusInd Bank as Conversion Executive at Nehru Place Branch in September 2003. He handed over the documents pertaining to A/C No. 0012131884050 of Balaji Trading Company which are Account Opening Form Ex. PW7/B, Form 60 Ex. PW7/C, photocopy of rent agreement Ex.PW7/E, photocopy of admit card of Raja Ram Sharma ExPW7/F, introduction letter dated 28.02.2003 Ex PW7/G issued by City Union Bank, Karol Bagh Branch, Declaration dated 27.02.2003 of Raja Ram Sharma Ex.PW21/A, photocopy of application dated 28.02.2003 Ex.PW7/H of Raja CC No. 06/12 & ID No. 64/19 Page 176 of 402 State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 Ram Sharma regarding issuance of cheque book, application Ex.PW7/I of Raja Ram Sharma for change of address, photocopy of rent agreement dated 07.11.2003 Ex.PW7/J, application dated 13.05.2004 Ex.PW7/D of Raja Ram Sharma for closure of account, attested statement of account of above account from 01.02.2003 to 07.07.2004 Ex.PW21/B and 15 cheques Ex.PW7/U1 to Ex.PW7/U15 to the CBI. He deposed that this account was opened on 28.02.2003.
189. He further deposed that four cash orders bearing No. 108536 dated 07.04.2003, No. 108566 dated 09.04.2003, No. 371576 dated 16.06.2003 and No. 371439 dated 26.05.2003 Ex.PW21/C to Ex.PW21/F respectively in favour of Balaji Trading Company of PNB were credited in the account of M/s Balaji Trading Company in their bank and the Statement of Account of the aforesaid current account of M/s Balaji Trading company for the period from 01.02.2003 to 07.07.2004 Ex.PW21/B bears the credit entries in respect of the cash orders Ex.PW21/C to Ex.PW21/F at points 'B1' to 'B4'. He also deposed that the statement of account Ex.PW21/B bears two entries regarding proceeds of discounted bills under LC issued by PNB at points 'C1' and 'C2' vide two cash orders bearing No. 371493 & 371494 both dated 03.06.2003 Ex.PW21/G and Ex.PW21/H respectively.
CC No. 06/12 & ID No. 64/19 Page 177 of 402
State vs. Arvind Johri. & Ors Judgment dt.18.10.2022
190. The Statement of account of M/s Gaaman Global Exports also shows debit entries of amounts of Rs. 9,98,876/ against cash orders on 03.06.2003 at points B & C. So, it can be deduced that said amounts were credited in the account of M/s Balaji Trading Company vide aforesaid two cash orders on 03.06.2003.
191. Again there is no dispute by A2 Mahan Mukherjee and A3 Rajendra S. Raikwar to these facts regarding opening of current account in the name of proprietorship firm of their employee Sh. Raja Ram Sharma i.e. M/s Balaji Trading Company in IndusInd Bank at Nehru Place, New Delhi and transfer of funds from M/s Gaaman Global Exports in the account of said M/s Balaji Trading Company.
192. Thus, from the testimonies of aforesaid prosecution witnesses, it is proved on record that Sh. Raja Ram Sharma, employee in the firm M/s Gaaman Global Exports got opened a current A/c No. 0012131884050 in the name of M/s Balaji Trading Company on 28.02.2003 in IndusInd Bank Ltd., Nehru Place, New Delhi vide Account Opening Form Ex.PW7/B. The said account was opened on the introduction letter dated 28.02.2003 Ex PW7/G issued by City Union Bank, Karol Bagh Branch, New Delhi where Raja Ram Sharma was having another current account in the name of his proprietorship firm M/s Balaji CC No. 06/12 & ID No. 64/19 Page 178 of 402 State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 Trading Company.
193. It also stands proved that an amount of Rs.78,60,333.25/ was transferred in the said account of M/s Balaji Trading Company from the loan account of M/s Gaaman Global Exports during the year 2003. The Statement of Account Ex.PW21/B of M/s Balaji Trading Company and of M/s Gaaman Global Exports show the relevant credit/debit entries of the amounts in the account of M/s Balaji Trading company through cash orders/pay orders issued by New Rohtak Road Branch of Punjab National Bank as per details given as under: Sl. No. Cash Order/Pay Order/ Date Amount Cheque No.
1. CO 371493 03.06.2003 Rs. 9,98,876/ Ex.PW21/G (also Ex.PW35/E2)
2. CO 371494 03.06.2003 Rs. 9,98,876/ Ex.PW21/H (also Ex.PW35/E3) 3 PO 108536 07.04.2003 Rs.11,55,375/ Ex.PW21/C
4. PO 108566 09.04.2003 Rs.10,39,837.50/ Ex.Pw21/D CC No. 06/12 & ID No. 64/19 Page 179 of 402 State vs. Arvind Johri. & Ors Judgment dt.18.10.2022
5. PO 371439 26.05.2003 Rs.23,25,750/ Ex.PW21/F
6. PO 371576 16.06.2003 Rs.13,41,618.75/ Ex.PW21/E TOTAL Rs.78,60,333.25/ MONEY CIRCULATION/SIPHONING OFF FUNDS
194. As it stands proved that a total amount of Rs. 1,17,02,743.25/ was transferred / diverted by M/s. Gaaman Global Exports in three accounts of firms, namely, M/s. Balaji Trading Company at City Union Bank Ltd., Karol Bagh, New Delhi , another account of the same firm M/s. Balaji Trading Company in Indusind Bank at Nehru Place and of M/s. L.B. Enterprises at Corporation Bank which were opened by PW7 Raja Ram Sharma at the behest of Mahan Mukherjee as well as in the account of M/s Swastik Exports, a partnership firm of A1 Arvind Johri (since deceased) and Sh. Ashok Mukherjee (uncle of A2 Mahan Mukherjee), question which now arises for consideration is as to whether transfer of funds by M/s Gaaman Global Exports to the accounts of aforementioned firms amounts to siphoning off funds by M/s Gaaman Global Exports or the funds were transferred to these firms by M/s Gaaman Global Exports on account of some business dealings; and if the funds were siphoned CC No. 06/12 & ID No. 64/19 Page 180 of 402 State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 off as to who siphoned off the funds of M/s Gaaman Global Exports.
195. It is the case of the prosecution that the money of the firm M/s Gaaman Global Exports which was taken from the bank in respect of various loan and credit facilities was siphoned off by the partners of the firm, namely, A2 Mahan Mukherjee and A3 Rajendra S. Raikwar and A1 Arvind Johri (since deceased), CEO of the firm by opening the accounts in the name of fake proprietorship firms through their employee Raja Ram Sharma and thereafter transferring the amounts from the account of M/s Gaaman Global Exports to the accounts of those firms opened through Raja Ram Sharma by issuing various cheques and getting issued various letters of credit by the bank in favour of those firms besides in favour of the firm M/s Swastik Exports with whom the borrower firm M/s Gaaman Global Exports had no dealing. Subsequently, the amount so transferred in the accounts of said firms were withdrawn in cash by the partners of the firm. While on the other hand, A2 Mahan Mukherjee has taken a plea in his statement under Section 313 Cr.P.C. that it was Arvind Johri and Raja Ram Sharma who had siphoned off the money of M/s Gaaman Global Exports. He further stated that he has been cheated by Raja Ram Sharma and Arvind Johri. Raja Ram Sharma opened fake company's account in the name of M/s Balaji Trading Company in which Rs. 78 lakhs were CC No. 06/12 & ID No. 64/19 Page 181 of 402 State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 transferred from M/s Gaaman Global Exports as Balaji Trading Company was also the name of an old and reputed rice trading firm in Naya Bazaar and, therefore, Raja Ram Sharma had no difficulty in obtaining payments in this firm's name from M/s Gaaman Global Exports as they had old business transaction with them. He has taken further plea that Raja Ram Sharma opened another account in the name of M/s. Balaji Trading Company in City Union Bank in which Rs. 16 lakhs was transferred from M/s Gaaman Global Exports. Similarly, Raja Ram Sharma opened another account in the name of L.B. Enterprises with Corporation Bank, Shalimar Bagh and Rs. 12.87 lakhs were transferred from M/s Gaaman Global Exports. He has also stated that Raja Ram Sharma opened the account in the name of M/s. Balaji Trading Company to befool them so that he can produce invoices of rice in their names which he then encashed using this fraudulent account and withdrew the entire amount in cash. He further stated that M/s Gaaman Global Exports had issued cheques only to real Balaji Trading Company which was an old reputed firm.
196. A3 Rajendra S. Raikwar has taken a plea in his statement under Section 313 Cr.P.C. that he was not involved in the business of the firm and day to day affairs of the firm were being looked after by A1 Arvind Johri and A2 Mahan Mukherjee. He just signed the cheques on the instructions of A2 Mahan CC No. 06/12 & ID No. 64/19 Page 182 of 402 State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 Mukherjeee and he had no role in siphoning off the funds of M/s Gaaman Global Exports.
197. In view of these rival contentions, the primary onus was on the prosecution to prove that amount to the tune of Rs.1,17,02,743.25/ transferred from the loan account of M/s. Gaaman Global Exports in the account of firms M/s. Balaji Trading Company, M/s L.B. Enterprises and M/s. Swastik Export was siphoned off by the partners of the firm.
198. In order to prove the same, the prosecution has examined PW7 Raja Ram Sharma who is the star witness of the prosecution. He deposed that in the year 1999, he met Ravinder Singh, Chartered Accountant and spoke him about his job who referred him to the office of M/s Gaaman Global Exports at G115, Vikas Puri, New Delhi where he met Rajendra S. Raikwar and Mahan Mukherjee who were the partners of M/s Gaaman Global Exports and they were in the business of export of rice. He further deposed that he was given a job of Computer Operator in their firm. PW7 further narrates about the internal affair of M/s Gaaman Global Export, its banks accounts as well as the accounts opened from time to time vis a vis he was also maintaining/ keeping cashbook, but without cash in hand, the entries used to be made as per instructions given by its CEO. His monthly salary was Rs.2500/ and PW7 used to be called by CC No. 06/12 & ID No. 64/19 Page 183 of 402 State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 name Devgan being his nick name.
198.1. He further deposed that M/s Gaaman Global Exports has two bank accounts viz. one in Punjab National Bank, Hari Nagar Branch and another account in Bank of Punjab Ltd., Connaught Place, New Delhi. Then accused Arvind Johri was appointed as CEO and after appointment of Arvind Johri, another account of the firm was opened in Punjab National Bank, NRB. K.B. Relan was the Branch Manager who was neighbour of Arvind Johri. He further deposed that the main purpose of opening Account in PNB, NRB was to obtain loan. Initially, M/s Gaaman Global Exports took a loan of Rs. 20,00,000/ from PNB, NRB. Later on, the amount of loan was increased by giving bribe to the Branch Manager, PNB, NRB. The property documents submitted along with the loan application were arranged by Anil Mahajan. Later they i.e. the Staff came to know that the property documents were forged. However, the partners of the firm already knew that the property documents were forged. 198.2. He further deposed that Arvind Johri and his partner Sh. Ashok Mukherjee who was uncle of accused Mahan Mukherjee opened another account in PNB, NRB in the name of Swastik Exports. Another account in the name of Swastik Exports was opened in Punjab & Sind Bank, New Friends Colony, New Delhi. Swastik Exports had taken a loan of about Rs. 60,00,000/ from the said CC No. 06/12 & ID No. 64/19 Page 184 of 402 State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 bank and the property documents submitted for the said loan were also arranged by accused Anil Mahajan. Later, the staff member had come to know that the said documents were forged. However, the partners of the firm already knew that the said documents were forged. He further deposed that accused Mahan Mukherjee, Ashok Mukherjee and Arvind Johri had by force opened a company in his name in the name and style of Balaji Trading Company. At that time, his financial condition was not good and had he refused, they would have removed him from service. Account of Balaji Trading Company was opened at City Union Bank, Karol Bagh, New Delhi. While opening the Account, the Account opening form etc. were filled up by Arvind Johri in his hand. The documents submitted along with the Account opening form were also arranged by Arvind Johri. In the account of Balaji Trading company, a sum of about Rs. 16,00,000/ was transferred from the Account of M/s Gaaman Global Exports by way of Pay Order, LC etc. The said amount was withdrawn by Mahan Mukherjee and Arvind Johri in parts. Arvind Johri would obtain his signatures on the blank cheques and he used to retain the cheque books with him. After withdrawal of money, they used to deposit the money in some other bank. Their main purpose was to rotate the entries. No sale or purchase was made with Balaji Trading Company.
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State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 198.3. PW7 Raja Ram Sharma further deposed that thereafter Arvind Johri and Mahan Mukherjee opened another company in his name in the name & style of L.B. Enterprises. Account of L.B. Enterprises was opened in Corporation Bank, Shalimar Bagh. The said Account was introduced by Sh. Randhir Saluja, Proprietor of Saluja Enterprises. They used to supply goods to M/s Gaaman Global Exports. They were very well known to Mahan Mukherjee and Arvind Johri. In the Account of L.B. Enterprises also, a sum of about Rs.12,87,000/, was transferred from the Loan Account of M/s Gaaman Global Exports by way of the cheques, Pay Orders etc. Mahan Mukherjee and Arvind Johri used to take the money withdrawn in parts from the account of L.B. Enterprises and retain the same with them. No sale or purchase had taken place with Balaji Trading Company or L.B. Enterprises. Later another Account of Balaji Trading Company was opened in IndusInd Bank at Nehru Place, New Delhi. In this account also, a sum of about Rs.78,00,000/ was transferred from the loan account of M/s Gaaman Global Exports. From this account also, money was withdrawn by Mahan Mukherjee and Arvind Johri. He deposed that he had not entered into any sale or purchase with Swastik Enterprise or Satya Sai International. He had not issued the cheques to them.
198.4. In his crossexamination by Ld. Counsel for A2 Mahan Mukherjee, CC No. 06/12 & ID No. 64/19 Page 186 of 402 State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 PW7 Raja Ram Sharma stated that he had not told his brotherinlaw or his friend Sh. Surender Prakash about the threat given by Mahan Mukherjee and Arvind Johri that they will remove him from service if he does not abide by their dictates. He further stated that accused Mahan Mukherjee had a separate cabin in the office. Voluntarily, he stated that he used to sit with Arvind Johri. In case of any problem in the office, he used to go to accused Mahan Mukherjee or Arvind Johri. Whenever required, he used to go to the house of Arvind Johri. Voluntarily, he stated that he also used to go to the house of accused Mahan Mukherjee. He admitted that on record, he was proprietor of Balaji Trading Company and L.B. Enterprises. He further admitted that money used to be withdrawn by him through self cheques. He cannot tell the particulars of the property regarding which documents were forged. He came to know that the documents were forged after the raid conducted by CBI. In reply to a question put to him, he admitted that apart from the Balaji Trading Company and L.B. Enterprises of which he is the proprietor, there were two other companies named Balaji Trading Company and L.B. Enterprises in Naya Bazar, Khari Baoli, Delhi where Mahan Mukherjee used to keep his rice and take money from them. He denied the suggestion that M/s Gaaman Global Exports used to purchase rice from the aforesaid two companies. He admitted that he and one Rahul, another CC No. 06/12 & ID No. 64/19 Page 187 of 402 State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 employee of M/s Gaaman Global Exports used to go to the aforesaid two companies for taking payments.
198.5. In his crossexamination by Ld. Counsel for A3, the witness stated that after year 2003, mostly accused Mahan Mukherjee used to sign on the documents of the company. He admitted that after year 2001, accused Rajendra S. Raikwar used to remain in Bombay or Lucknow and he used to come to Delhi once in 1520 days. He admitted that whenever there was any requirement of getting his signatures on cheque or other document, he or Mr. Rahul Chauhan used to go to his house for getting his signatures. He further admitted that they used to get signatures of accused Rajendra S. Raikwar on blank cheques, which were used later on. He admitted that day to day business of the company was being looked after by accused Mahan Mukherjee and not by accused Rajendra S. Raikwar. To the suggestion that accused Rajendra S. Raikwar had no role in the wrong acts of the company as deposed by him, he stated that he does not know whether as a partner of the firm, he had knowledge of the same or not.
199. From the aforesaid crossexamination of PW7, it is apparent that his testimony as to how Arvind Johri and Mahan Mukherjee forced him to open the accounts in his name of the firms M/s Balaji Trading Company and M/s L.B. Enterprises and how the funds of M/s Gaaman Global Exports were siphoned off CC No. 06/12 & ID No. 64/19 Page 188 of 402 State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 by transferring the amount in the accounts of aforesaid firms as well as in the account of M/s Swastik Exports, a partnership firm of Arvind Johri and Ashok Mukherjee (uncle of A2 Mahan Mukherjee) could not be impeached by A2 Mahan Mukherjee. Ld. Counsel for A2 has submitted that the version of PW7 that he was threatened to remove from the job if he would not comply the directions of Arvind Johri and Mahan Mukherjee is not believable because admittedly he had not told his brotherinlaw and friend about this fact. I do not find it to be a sufficient ground to reject the testimony of PW7 Raja Ram Sharma. Admittedly, Raja Ram Sharma was a petty employee working in M/s Gaaman Global Exports on a meager salary of Rs. 2500/ per month. He was more concerned to save his job and could not have mustered the courage to defy the dictates of the partners/CEO of the firm as it would have resulted into his firing out from the job. He had no bargaining capacity and, therefore, if he did not inform his brother inlaw or friend Sh. Surender Prakash about the pressure laid by his employer for opening the accounts in the name of aforementioned firms, it cannot be said that the witness is unreliable.
200. PW7 was put a question as to besides M/s Balaji Trading company and M/s L. B. Enterprises of which he was the proprietor, there were other firms of the same name in Naya Bazar which were the wholesalers dealing in rice. The CC No. 06/12 & ID No. 64/19 Page 189 of 402 State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 witness answered in affirmative and stated that there were two companies named Balaji Trading Company and L. B. Enterprises, Naya Bazar, where Mahan Mukherjee used to keep his rice and take money from them. He was suggested that M/s Gaaman Global Exports used to purchase rice from the aforesaid two companies which PW7 denied. He admitted that he and one Rahul another employee of M/s Gaaman Global Exports used to go to the aforesaid companies for taking payment. However, PW7 was not further suggested by Ld. Defence Counsel that they used to go to the aforesaid two companies for taking payment in respect of sale/purchase of rice. He was suggested that the trading of broken rice is always done in cash to which he stated that it is done both by cheque and in cash. However, this suggestion appears to be misplaced and contrary to the case set up by A2 Mahan Mukherjee that PW7 Raja Ram Sharma had opened the firms in the same name of firms which were existing in Naya Bazar with whom they had business dealings and by deceiving the partners, PW7 got issued cheques in the name of his firms. If that was the case, then question of trading of broken rice being always done in cash does not arise. Both appear to be contradictory stands.
201. The remaining crossexamination of this witness by A2 Mahan Mukherjee remained confined to cash book Ex. PW7/W besides the suggestions CC No. 06/12 & ID No. 64/19 Page 190 of 402 State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 that he along with Arvind Johri siphoned off the funds of the company or that M/s Balaji Trading and M/s L.B. Enterprises were opened by him and Arvind Johri or that he had control over the said companies which were denied by the witness. Nothing material could be extracted on the assertions made by PW7 regarding siphoning off the funds by A2 Mahan Mukherjee along with Arvind Johri and later on withdrawal of money in cash through self cheques by them and testimony of PW7 has remained unshaken.
202. Sh. Javed Hashmi, Ld counsel for A2 though has also vehemently argued that PW7 Raja Ram Sharma was in fact a person who had opened the accounts in the name of M/s Balaji Trading Company and M/s L.B. Enterprises to dupe the partners of the firm by obtaining the cheques in the name of said firms with whom M/s Gaaman Global Exports had business dealings as the firms in the same name were situated in Naya Bazaar. He further submitted that PW7 who was an accomplice and allegedly involved in the crime and bargained with the CBI for his immunity is not a reliable and trustworthy witness by virtue of Section 114(b) of the Indian Evidence Act and his testimony cannot be relied upon.
203. This court is conscious of the fact that PW7 Raja Ram Sharma who was an employee of M/s Gaaman Global Exports was an accomplice and he has CC No. 06/12 & ID No. 64/19 Page 191 of 402 State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 become an approver on the grant of pardon. Section 133 of the Indian Evidence Act provides that an accomplice shall be a competent witness against an accused person; and a conviction is not illegal merely because it proceeds upon the uncorroborated testimony of an accomplice. However, Section 114 (b) of the Evidence Act states that an accomplice is unworthy of credit, unless he is corroborated in material particulars. Therefore, when the aforesaid two provisions of the Evidence Act are read in harmony the rule of prudence requires that testimony of an accomplice should be corroborated by other independent evidence.
204. It is a settled law that an accomplice is a competent witness but rule of caution and presumption cast that testimony of accomplice shall be corroborated by material particulars. Therefore, while appreciating the evidence, the statement of approver need not to be corroborated in each aspect by other independent testimony, but if the additional evidence supports the statement of accomplice then the statement of accomplice will be treated as corroborated.
205. In view of above, it has to be seen as to whether statement of PW7 Raja Ram Sharma that the firms and accounts opened by him in the name of M/s Balaji Trading Company and M/s L.B. Enterprises were fake firms which were CC No. 06/12 & ID No. 64/19 Page 192 of 402 State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 got opened by A2 Mahan Mukherjee and funds were transferred from M/s Gaaman Global Exports to these accounts and later on the money so transferred was got withdrawn through self cheques by him and collected in cash by accused Mahan Mukherjee is corroborated by some other evidence on record.
206. The file Ex.PW12/H (Colly), which was seized from PW12 R.M. Sachdeva, the then Manager in New Rohtak Road Branch of Punjab National Bank by the IO vide seizure memo Ex.PW12/G, contains a letter dated 24.01.2003 issued by A2 Mahan Mukherjee being the partner of M/s. Gaaman Global Exports on the letterhead of the firm to the Branch Manager PNB, New Rohtak Road on the subject 'Requirement of Reduction of Margin for ILC'. In the said letter, he has stated that they have contract for export of rice and for further supply of 4830 quintal @ Rs. 3131/ per quintal, an amount of Rs. 25,98,730/ was required in favour of M/s Balaji Trading Company c/o City Union Bank, Karol Bagh and it was requested to reduce the margin amount for opening this ILC to 10% from the sanctioned percentage of 25%.
207. It is pertinent to note here that the account of M/s Balaji Trading Company in City Union Bank, at Karol Bagh, New Delhi was opened on 04.01.2003 vide Account Opening Form Ex.PW7/K.
208. In the file Ex.PW12/H (Colly), there is another letter dated CC No. 06/12 & ID No. 64/19 Page 193 of 402 State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 29.03.2003 written by Mahan Mukherjee being partner of M/s Gaaman Global Exports on the letterhead of the firm to the Sr. Manager, PNB, New Rohtak Road, where it was stated that PC limits of Rs. 150 lakhs was sanctioned to them and they have one letter of credit from M/s FDL Global Limited London and they have to purchase the material to execute the export order in time, therefore, it was requested to issue demand drafts as per proforma invoice enclosed with the letter.
209. Pursuant to the same, the proforma invoice dated 28.03.2003 for an amount of Rs.15,40,500/ on the letterhead of M/s Balaji Trading Company for 500 quintal Golden Sela Basmati Rice @ Rs 3081 per quintal was submitted. The said proforma invoice is of M/s Balaji Trading Company bearing address H 29B Kalkaji, New Delhi issued by authorized signatory bearing signature of Raja Ram Sharma in Hindi. The said proforma invoice has been countersigned by A2 Mahan Mukherjee under his signature and stamp of the firm. Thereafter, there is receipt dated 06.04.2003 on the letterhead of M/s Balaji Trading Company bearing address H29B Kalkaji, New Delhi regarding acknowledgement of Rs.3,85,125/ in advance against proforma invoice dated 28.03.2003 for 500 quintal of Golden Sela Basmati Rice from M/s Gaaman Global Exports issued by Raja Ram Sharma as proprietor of the firm Balaji CC No. 06/12 & ID No. 64/19 Page 194 of 402 State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 Trading Company and also countersigned by A2 Mahan Mukherjee as partner and bearing stamp of the firm.
210. There is another proforma invoice Ex.PW41/H for Golden Sela Basmati Rice of 1000 quintal @ Rs.3101/ per quintal for amount of Rs. 31,01,000/ dated 12.05.2003 on the letterhead of M/s Balaji Trading Company bearing address of H29B Kalkaji, New Delhi signed by Raja Ram Sharma in Hindi as proprietor of M/s Balaji Trading Company and also countersigned by Mahan Mukherjee as partner of M/s Gaaman Global Exports. On the said proforma invoice above the stamp of M/s Gaaman Global Exports and signature of Mahan Mukherjee it is written "please issue pay order". There is receipt dated 17.05.2003 Ex. PW41/G acknowledging the advance payment of Rs.7,75,250/ for supply of 1000 quintal of Indian Golden Sela Rice for export on the letterhead of M/s Balaji Trading Company having address of H29B Kalkaji, New Delhi issued by Raja Ram Sharma as proprietor of M/s Balaji Trading Company.
211. There is another proforma invoice dated 21.05.2003 for Golden Sela Basmati Rice of 575 quintal @ Rs. 3111/ per quintal for Rs.17,88,825/ on the letterhead of M/s Balaji Trading Company having same address of H29B Kalkaji, New Delhi. There is receipt dated 22.05.2003 on the letterhead of M/s CC No. 06/12 & ID No. 64/19 Page 195 of 402 State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 Balaji Trading Company having address H29B Kalkaji, New Delhi acknowledging receipt of Rs. 4,47,206.25 paisa in advance against supply of 575 quintal of Golden Sela Basmati Rice.
212. There is letter dated 14.06.2003 written by Mahan Mukherjee addressed to Sr. Manager, PNB regarding L/C for 311 MT Basmati Golden Sela Rice and to release the PCL and to issue demand drafts favouring M/s Balaji Trading Company, M/s Shree Laxmi Traders and M/s Guruji Trading Company as per proforma invoices already submitted with the bank.
213. There is another letter to issue pay order for Rs.13,41,618.75/ paisa in favour of M/s Balaji Trading Company as per proforma invoice already enclosed under PCL account.
214. There is another letter dated 16.06.2003 sent by A2 Mahan Mukherjee to Sr. Manager PNB that they had already made advance payment to M/s Shree Laxmi Traders and M/s Balaji Trading Company and fixed the price of Basmati rice and requesting to issue pay order to these two parties.
215. There is another letter dated 19.05.2003 Ex. PW41/E written by A 2 Mahan Mukherjee to the Manager, PNB by which proforma invoices of M/s Balaji Trading Company, M/s L.B. Enterprises and M/s Shree Laxmi Traders for purchasing material to execute export order of 311 MT Basmati Golden Sela CC No. 06/12 & ID No. 64/19 Page 196 of 402 State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 Rice were enclosed and it was requested to issue the demand drafts.
216. There is proforma invoice dated 08.04.2003 for Golden Sela Basmati Rice for 450 quintal of Rs.3081/ per quintal for a total amount of Rs.13,86,450/ on the letterhead of M/s Balaji Trading Company bearing address of H29B Kalkaji, New Delhi issued by Raja Ram Sharma as proprietor of M/s Balaji Trading Company and also countersigned by Mahan Mukherjee bearing his signature and stamp of the firm. Alongwith this proforma invoice, there is receipt dated 09.04.2003 issued by Raja Ram Sharma as proprietor of M/s Balaji Trading Company acknowledging receipt of Rs.3,46,612.50/ paisa against supply of 450 MT Indian Golden Sela Basmati Rice on the same letterhead and also countersigned by Mahan Mukherjee under his signature and stamp of the firm.
217. There is letter dated 17.05.2003 Ex. PW41/F written by A2 Mahan Mukherjee under his signature and stamp of the firm to M/s Balaji Trading Company on the address H29B Kalkaji, New Delhi informing them that Indian Golden Sela Rice is lying in their godown for processing and the said stock is pledged by M/s Gaaman Global Exports with PNB and that they should note their pledge and confirm to the bank that they will not dispose off or part with the stocks without written permission of the bank. The said letter also bears CC No. 06/12 & ID No. 64/19 Page 197 of 402 State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 signature of Raja Ram Sharma being proprietor of M/s Balaji Trading Company as an acknowledgment of receipt of the said letter.
218. Ex. PW12/H (colly) further contains a proforma invoice no. 57/03 dated 28.03.2003 of the firm M/s L.B. Enterprises, O24 Chankya Place II, Janakpuri, New Delhi and consignee is M/s Gaaman Global Exports G115, Vikaspuri, New Delhi for 550 quintal Basmati rice for an amount of Rs.17,16,550/. The said proforma invoice has also been countersigned by A2 Mahan Mukherjee under his signature and stamp of the firm M/s Gaaman Global Exports. There is receipt dated 07.04.2003 issued by M/s L.B. Enterprises bearing the same address acknowledging the receipt of Rs. 4,29,150/ against proforma invoice no. 57/03 and the same has been issued under the signature of Devgan shown as proprietor of M/s L.B. Enterprises and also countersigned by A2 Mahan Mukherjee.
219. There is another proforma invoice no. 17/LBE/0304 dated 09.05.2003 for Rs. 14,77,725/ for 475 quintal of Basmati rice on the letterhead of M/s L.B. Enterprises, Chankya Place II, Janakpuri, New Delhi.
220. There is another proforma invoice no. 19/LBE/0304 dated 12.05.2003 on the letterhead of M/s L.B. Enterprises having the same address of Chankya Place II Janakpuri, New Delhi for Basmati rice of 300 quintal of CC No. 06/12 & ID No. 64/19 Page 198 of 402 State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 Rs. 9,33,300/.
221. There is receipt dated 12.05.2003 issued by M/s L.B. Enterprises acknowledging receipt of payment of Rs.6,35,000/ in cash from M/s Gaaman Global Exports as advance against proforma invoice no. 17/ILBE/0304 and 19/LBE/0304 for supply of Indian Basmati Golden Sela Rice for export.
222. There is a letter dated 17.05.2003 sent by A2 Mahan Mukherjee to M/s L.B. Enterprises, Chankya Place II, Janakpuri, New Delhi confirming them to note their pledge with PNB and not to dispose of or part with the stocks without the permission of the bank. The same is countersigned by one Pradeep for M/s L.B. Enterprises.
223. The aforesaid proforma invoices and the receipts have been submitted by A2 Mahan Mukherjee to the Sr. Manager PNB for releasing the payments against packing credit limit for purchase of the rice to execute the export order and requesting the Sr. Manager to release the pay orders as per the proforma invoices. The cash amount received by these firms from M/s Gaaman Global Exports for which receipts have been issued acknowledging receipt of purported advance payment against supply of rice as per the proforma invoices have been duly reflected in the ledger account of the firm M/s Gaaman Global Exports which also finds enclosed in the file Ex.PW12/H (Colly). These CC No. 06/12 & ID No. 64/19 Page 199 of 402 State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 correspondences, invoices and other documents have not been disputed by accused persons as the entire file containing these correspondences, invoices and other documents has been exhibited as Ex.PW12/H (Colly). The file Ex. PW12/H (Colly) was handed over by PW12 Sh. R.M. Sachdeva, the bank witness to the CBI vide seizure memo Ex.PW12/G and during cross examination of this witness by A2, he stated that for the first time CBI came to branch to ask for certain documents. Then they had gone to their office various times to hand over the documents. They had handed over whatever documents were available in the file. During the entire cross examination of PW12 Sh. R.M. Sachdeva, the Ld counsel for A2 has not disputed the documents and correspondences contained in the said file.
224. A perusal of the aforesaid proforma invoices would unambiguously reveal that the proforma invoices are on the letterhead of M/s Balaji Trading Company bearing the address of H29B Kalkaji, New Delhi. Similarly, the proforma invoices of M/s L.B. Enterprises are bearing the address of Chankya Place II, Janakpuri, New Delhi. All the proforma invoices of M/s Balaji Trading Company and receipts thereof have been signed by Raja Ram Sharma in the capacity of the proprietor of the said firm. The proforma invoices and the cash receipts bear the signature of A2 Mahan Mukherjee under the stamp of the firm. CC No. 06/12 & ID No. 64/19 Page 200 of 402
State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 It shows that A2 Mahan Mukherjee very well knew that he was dealing with the firm M/s Balaji Trading Company whose proprietor was Raja Ram Sharma. There was no scope for him to believe that the said proforma invoices or cash receipts were issued by the firm M/s Balaji Trading Company at Naya Bazar. Likewise, letter head and cash receipts of M/s L.B. Enterprises clearly show the address of Chankya Place and the said address was shown in the Account Opening Form Ex.PW7/P by Raja Ram Sharma while opening the account in the bank. Again the proforma invoices and receipts of said firm M/s L.B. Enterprises did not bear any trace of the address of Naya Bazar and, therefore, the plea taken by A2 Mahan Mukherjee that he had been issuing the cheques and got the cash orders issued from the bank in favour of M/s Balaji Trading Company and M/s L.B. Enterprises situated at Naya Bazar, New Delhi with whom they had old business dealing is a blatant lie and liable to be rejected in the teeth of overwhelming evidence as discussed hereinabove. Furthermore, the account of the firm M/s L.B. Enterprises was opened in Corporation Bank vide application Ex.PW7/P and the said account was introduced by PW11 Sh Randhir Singh Saluja c/o Saluja Enterprises who used to supply goods to M/s Gaaman Global Exports and was very well known to Mahan Mukherjee and Arvind Johri.
CC No. 06/12 & ID No. 64/19 Page 201 of 402
State vs. Arvind Johri. & Ors Judgment dt.18.10.2022
225. During crossexamination of PW11 R.S. Saluja, Ld. Counsel for A2, though has tried to make out a case that on the asking of A1 Arvind Johri (since deceased), he (R.S. Saluja) had introduced the account of M/s L.B. Enterprises and A2 Mahan Mukherjee had no role in the introduction of the account as he was suggested that he had introduced the account of M/s L.B. Enterprises on the request of Arvind Johri or that he had named Mahan Mukherjee at the instance of CBI which suggestion he denied. He categorically stated that both accused Mahan Mukherjee and Arvind Johri had asked him to introduce the above account, however Arvind Johri convinced him more to introduce the said account. He was confronted with his statement recorded under Section 161 Cr.P.C. Ex.PW11/D1 where it was recorded that "I admit that I have introduced the A/C of M/s L.B. Enterprises of Raj Ram Sharma, Accountant, M/s Gaaman Global Exports on the request of Mahan Mukherjee, partner in M/s Gaaman Global Exports or Arvind Johri, CEO of the said firm"
He voluntarily stated that the word "or" has been wrongly recorded instead of "and".
226. It otherwise does not make any difference that who introduced the account in the bank as there is no dispute to the fact that account in the name of M/s L.B. Enterprises was opened in Corporation Bank, Shalimar Bagh, New CC No. 06/12 & ID No. 64/19 Page 202 of 402 State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 Delhi and an amount of Rs. 16,87,410/ was transferred in the said account from the loan account of M/s Gaaman Global Exports.
227. The aforesaid documentary evidence available in the file Ex.PW12/H (Colly), which has not been disputed by the accused persons, corroborates the statement of PW7 that the accounts were got opened by Arvind Johri and Mahan Mukherjee in the name of M/s Balaji Trading Company in City Union Bank, at Karol Bagh, New Delhi and in Indusind Bank at Nehru Place, New Delhi and in the name of M/s L.B. Enterprises in Corporation Bank, at Shalimar Bagh, New Dellhi to siphon off the funds of M/s Gaaman Global Exports while there were no actual sale or purchase of rice with these firms by M/s Gaaman Global Exports.
228. There is yet another aspect of the matter. A2 Mahan Mukherjee has taken a plea that Raja Ram Sharma had got opened the said accounts in the name of firms which were situated in Naya Bazar with whom M/s Gaaman Global Exports had business dealings and thereby he cheated partners of the firm by obtaining the cheques and getting the cash orders in the names of the said firms. In order to prove the said plea, A2 Mahan Mukherjee could have summoned the said firms situated at Naya Bazar in the name of M/s Balaji Trading Company and M/s L.B. Enterprises to prove that there were business CC No. 06/12 & ID No. 64/19 Page 203 of 402 State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 dealings between M/s Gaaman Global Exports and M/s Balaji Trading Company as well as with M/s L.B. Enterprises at Naya Bazar and in lieu of the said business dealings there was an outstanding against M/s Gaaman Global Exports for which the firm M/s Gaaman Global Exports had issued cheques or got prepared the cash orders from PNB to liquidate the outstanding liability. A2 Mahan Mukherjee could have summoned the records of the said firms to show the challans, invoices, books of accounts which could have proved that there were genuine sale and purchase transactions between M/s Gaaman Global Exports and these firms and against those sale/purchase transactions M/s Gaaman Global Exports had issued cheques or got the cash orders prepared from the bank. But nothing sort of that has been done by A2 Mahan Mukherjee and adverse inference is liable to be drawn against him. Reliance may be placed upon the judgment of Hon'ble Supreme Court titled as Gopal Krishan Ji Ketkar Vs. Mohd. Haji Latif & Ors.,AIR 1968 Supreme Court 1413 in which it was held that, "A party in possession of best evidence which would throw light on the issue in controversy with holding it. Court ought to draw an adverse inference against him notwithstanding that onus of proof does not lie on him. Party cannot rely on abstract doctrine of onus of proof or on the fact that he was not called upon to produce it".
CC No. 06/12 & ID No. 64/19 Page 204 of 402
State vs. Arvind Johri. & Ors Judgment dt.18.10.2022
229. Similarly, there is nothing on the record to show that M/s Gaaman Global Exports had any business dealings/transactions with M/s Swastik Exports in favour of which M/s Gaaman Global Exports has released an amount of Rs.10,05,000/. It is pertinent to note here that account of M/s Swastik Exports was got opened by Arvind Johri and Ashok Mukherjee in the year 2002 vide account opening form Ex. PW22/A and the said account was introduced by A2 Mahan Mukherjee. PW7 Raja Ram Sharma has categorically stated that he had not entered into any sale or purchase with Swastik Enterprise or Satya Sai International nor he had issued the cheques to them.
230. The said fact is corroborated as there is nothing on record to show that there were any transaction of sale purchase of rice between M/s Swastik Exports and M/s Gaaman Global Exports. Similarly A2 Mahan Mukherjee could have also summoned the record of the said firm M/s Swastik Exports to prove that there was actual sale and purchase of the rice for which an amount of Rs.10,05,000/ was released by M/s Gaaman Global Exports in favour of M/s Swastik Exports but nothing of that sort has been done.
231. Perusal of case file Ex. PW12/H (Colly) further reveals that it contains delivery challans as a proof of supply of goods issued by the firms which has been countersigned by partners of the borrower firm M/s Gaaman CC No. 06/12 & ID No. 64/19 Page 205 of 402 State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 Global Exports. However, there is no single delivery challan issued by M/s Balaji Trading Company, M/s L.B. Enterprises and M/s Swastik Exports to show that the goods were delivered against the invoices submitted by these firms. It only indicates that the invoices and receipts got issued from M/s Balaji Trading Company and M/s L.B. Enterprises were not in respect of actual sale and purchase of the goods. Had that been so, there was no reason that the same would not be supported with any delivery challan which file Ex. PW12/H (Colly) contains in respect of other firms with whom M/s Gaaman Global Exports was dealing in sale purchase of rice. Even there is no challan / invoice or proforma invoice issued by M/s Swastik Exports in favour of M/s Gaaman Global Exports for sale of any rice against which a sum of Rs 10,05,000/ has been transferred by M/s Gaaman Global Exports in favour of M/s Swastik Exports.
232. It is also to be noted that the accounts of the firms M/s Balaji Trading Company and M/s L.B. Enterprises were got opened in the month of January 2003. A perusal of the balance sheet of the firm M/s Gaaman Global Exports in Ex.PW12/H (Colly) shows that there is no entry in the name of M/s Balaji Trading Company and M/s L.B. Enterprises in the list of sundry debtors and creditors prior to the year 2003 which again falsifies the plea of A2 Mahan CC No. 06/12 & ID No. 64/19 Page 206 of 402 State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 Mukherjee that M/s Gaaman Global Exports had business dealings with these two firms at Naya Bazar. Had that been so, there must have been some entries in the list of sundry debtors or creditors prior to the year 2003 when A2 has claimed that they had old business dealings with these firms.
233. Ld. Counsel for A2 has strenuously argued that there was no bar on withdrawing the cash by the partners of the firm from the cash credit account of the firm maintained with the PNB and there was no reason to involve Raja Ram Sharma in opening the accounts in the name of his proprietorship firms, thereafter diverting the funds of M/s Gaaman Global Exports to the account of those firms and subsequently to get the same withdrawn by way of cash. In this way, Ld. Counsel argued that had there been any dishonest intention on the part of partners of the firm to siphon off the funds of the firm it could have been done by themselves by withdrawing the payments through self cheques without involving Raja Ram Sharma or other firm. However, I do not find any merit in this contention. The cash credit facility and PC limit was given to the firm M/s Gaaman Global Exports by the bank for the purchase of rice for domestic sale and exports. There was also a rider on the partners of the firm not to divert the funds of the firm which can be seen from the document Ex. PW12/O which is an undertaking given by the partners of the firm namely Mahan Mukherjee CC No. 06/12 & ID No. 64/19 Page 207 of 402 State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 and Rajendra S Raikwar that they will utilize the loan only for the establishment and promotion of their business purpose and not divert the funds elsewhere. Had there been excessive cash withdrawals it would not have gone unnoticed as the account of the firm was under scrutiny by the branch as well as regional office. There are several communications between the Regional Office and the Branch and between the Branch and the borrower firm regarding the cash withdrawal by the firm. On several occasions, the Regional Office had objected on the cash transactions of the firm and had sought clarifications from the branch and the branch in turn sought clarification from the firm M/s Gaaman Global Exports.
234. It can be seen from the records that vide Ex. PW31/II which was the recommendation dated 30.01.2003 made by A10 Anil Agarwal, Sr. Manager (Credit) and PW31 Vinay Kapoor, Chief Manager on the proposal of the branch to enhance the fund based limit from Rs. 100 lakhs to Rs. 140 lakhs and renewal of non fund based limit of Rs 35 lakhs. While recommending the aforesaid proposal, the Sr. Manager (Credit) and Chief Manager at Regional Office has observed under the heading 'Overall Comments' as under: There was difference in credit summations and sales which is due to cash purchases and local purchases as confirmed by the branch. Branch Manager to monitor the cash transactions from the records CC No. 06/12 & ID No. 64/19 Page 208 of 402 State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 of the firm and ensure routing of entire sales proceeds through the account.
235. On the basis of said recommendation, PW42 V.K. Sharma, Sr. Regional Manager has sanctioned CC (Hyp) limit of Rs. 125 lakhs besides other limits in favour of the party on the proposed / prescribed terms and conditions.
236. Vide Ex. PW31/RR which is a letter dated 04.03.2003, the Chief Manager from Regional Office had again asked the explanation from Sr. Manager, Branch Office to a wide gap between sale and credit summations.
237. In response to the said letter, Sr. Manager A8 K.B. Relan had sent the explanation to the Sr. Regional Manager vide letter dated 04.03.2003 Ex. PW31/SS that there was a regular practice to deal through specific ARTIS in mandi and purchase and sales are routed through specific ARTIS to secure the payment. It is a general trend of the trade of receiving payment in cash. The said explanation of the branch head was based on the explanation given by the partners of the firm M/s Gaaman Global Exports.
238. Similar recommendations were made by the Sr. Manager (Credit) and Chief Manager at Regional Office while recommending the proposal for fresh packing credit limit of Rs. 150 lakhs of the branch vide recommendation dated 06.03.2003 Ex. PW31/TT that Branch Manager to monitor the cash CC No. 06/12 & ID No. 64/19 Page 209 of 402 State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 transaction of the records of the firm and to ensure routing entire sale proceeds through the account and on the basis of said recommendations, the packing credit limit for Rs 150 lakhs was sanctioned by Sr. Regional Manager on 10.03.2003 on the proposed/prescribed terms and conditions vide Ex. PW31/VV. Terms and conditions were conveyed to the Branch Manager while sanctioning the PC limit of Rs.150 lakhs and it was specifically stated that Branch Manager to ensure compliance of all terms and conditions of earlier sanction conveyed vide letter dated 03.03.2003.
239. It all shows that the cash transactions were under the constant scrutiny of the Regional Office and Branch Manager was directed to closely monitor the cash transactions from time to time. In these circumstances, if the huge money had been withdrawn in cash by the partners of the firm the same would not have gone unnoticed. This was the reason that a modus operandi was adopted by the partners of the firms namely A2 Mahan Mukherjee and A3 Rajendra S Raikwar to siphon off the funds of the firm through the accounts of M/s Balaji Trading Company, M/s L.B. Enterprises and M/s Swastik Export to camouflage the diversion of the funds of the firm as the payments made to the suppliers against the purchase of rice. This was the main reason that the partners of the firm did not withdraw the huge amount to the tune of more than CC No. 06/12 & ID No. 64/19 Page 210 of 402 State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 Rs 1 crore in cash as it could not have been justified if it had been withdrawn in cash. Therefore, there is no merit in the contention of Ld counsel for A2 that nothing prohibited the partners of the firm to withdraw the money in cash by themselves.
240. In the light of aforesaid discussions and evidence, oral as well as documentary, on record, the prosecution has successfully proved that it was A2 (Mahan Mukherjee) who siphoned off the funds of M/s Gaaman Global Exports by way of opening the accounts in the name of their employee Raja Ram Sharma and thereafter transferring the funds from the accounts of M/s Gaaman Global Exports to those accounts and subsequently get the payment withdrawn by way of cheques through Raja Ram Sharma.
241. The role of A3 Rajendra S. Raikwar, another partner, in siphoning off the funds of the firm shall be discussed at the later part of the judgment under proper head.
LINKAGE OF THE ACCUSED PERSONS WITH COMMISSION OF CRIME
242. Before proceeding further, it is appropriate stage to mention necessary ingredients of the relevant provisions of law, which will also be test CC No. 06/12 & ID No. 64/19 Page 211 of 402 State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 for facts in issue.
242.1. Section 13 (1) of the Prevention of Corruption Act, 1988 defines criminal misconduct by a public servant and reads as under: A public servant is said to commit the offence of criminal misconduct
(a)
(b)
(c)
(d) if he, i. by corrupt or illegal means, obtains for himself or for any other person any valuable thing or pecuniary advantage;
or ii. by abusing his position as a public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage; or iii. while holding office as a public servant, obtains for any person any valuable thing or pecuniary advantage, without any public interest.
[N.B (1) All the three clauses are independent and distinctive to constitute ingredients of offence u/s 13(1)(d), the acts (I) or (ii) above need not be in discharge of his duties.
(e) - 242.2. Section 13 (2) of the Prevention of Corruption Act, 1988 reads as under: CC No. 06/12 & ID No. 64/19 Page 212 of 402 State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 "Any public servant who commits criminal misconduct shall be punishable with imprisonment for a term which shall be not less than four years but which may extent to ten years and shall also be liable to fine".
242.3. Section 120A of the IPC defines criminal conspiracy and reads as under: When two or more persons agree to do, or cause to be done, (1) an illegal act, or (2) an act which is not illegal by illegal means, such an agreement is designated a criminal conspiracy:
Provided that no agreement except an agreement to commit an offence shall amount to a criminal conspiracy unless some act besides the agreement is done by one or more parties to such agreement in pursuance thereof.
242.4. Section 415 IPC defines cheating as under: "Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any personal shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to "cheat". CC No. 06/12 & ID No. 64/19 Page 213 of 402
State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 242.5. Section 420 IPC reads as under: "Cheating and dishonestly inducing delivery of property Whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any person, or to make, alter or destroy the whole or any part of a valuable security, or anything which is signed or sealed, and which is capable of being converted into a valuable security, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine". 242.6. Section 463 defines forgery and reads as under: "Whoever makes any false documents or false electronic record or part of a document or electronic record, with intent to cause damage or injury, to the public or to any person, or to support any claim or title, or to cause any person to part with property, or to enter into any express or implied contract, or with intent to commit fraud or that fraud may be committed, commits forgery".
242.7. Section 464 IPC provides as under: "Making of false document - A person is said to make a false document or false electronic record CC No. 06/12 & ID No. 64/19 Page 214 of 402 State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 First - Who dishonestly or fraudulently
(a) makes, signs, seals or executed a document or part of a document;
(b) makes or transmits any electronic record or part of any electronic record;
(c) affixes any electronic signature on any electronic record;
(d) makes any mark denoting the execution of a document or the authenticity of the electronic signature' with the intention of causing it to be believed that such document or part of document, electronic record or electronic signature was made, signed, sealed, executed, transmitted or affixed by or by the authority of a person by whom or by whose authority he knows that it was not made, signed, sealed, executed or affixed; or Secondly - Who, without lawful authority, dishonestly or fraudulently, by cancellation or otherwise, alters a document or an electronic record in any material part thereof, after it has been made, executed or affixed with electronic signature either by himself or by any other person, whether such person be living or dead at the time of such alteration; or Thirdly - Who dishonestly or fraudulently causes any person to sign, seal, execute or alter a document or an electronic record or to affix his electronic signature on any CC No. 06/12 & ID No. 64/19 Page 215 of 402 State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 electronic record knowing that such person by reason of unsoundness of mind or intoxication cannot, or that by reason of deception practised upon him, he does not know the contents of the document or electronic record or the nature of the alteration".
242.8. Section 467 IPC reads as under: "Forgery of valuable security, will etc. Whoever forges a document which purports to be a valuable security or a will, or an authority to adopt a son, or which purports to give authority to any person to make or transfer any valuable security, or to receive the principal, interest or dividends thereon, or any document purporting to be an acquittance or receipt acknowledging the payment of money, or an acquittance or receipt for the delivery of any immovable property or valuable security, shall be punished with imprisonment for lie or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine".
242.9. Section 30 IPC defines valuable security as under: "The words "valuable security" denote a document which is, or purports to be, a document whereby any legal right is created, extended, transferred, restricted, extinguished or CC No. 06/12 & ID No. 64/19 Page 216 of 402 State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 released, or whereby any person acknowledges that he lies under legal liability, or has not a certain legal right". 242.10. Section 468 IPC reads as under: Forgery for purposes of cheating - Whoever commits forgery, intending that the document or electronic record forged shall be used for the purpose of cheating, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
242.11. Section 471 IPC reads as under: Using as genuine a forged document or electronic record
- Whoever fraudulently or dishonestly uses as genuine any document or electronic record which he knows or has reason to believe to be a forged document or electronic record, shall be punished in the same manner as if he had forged such document or electronic record.
FINDINGS QUA A2 MAHAN MUKHERJEE & A3 RAJENDRA S. RAIKWAR
243. A2 Mahan Mukherjee and A3 Rajendra S. Raikwar besides being conspirators are also alleged to have committed substantive offence punishable CC No. 06/12 & ID No. 64/19 Page 217 of 402 State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 under Section 420 IPC on the ground that they have fraudulently and dishonestly induced the Punjab National Bank, New Rohtak Road Branch, New Delhi in granting various credit facilities to M/s Gaaman Global Exports on the basis of forged title deeds of the mortgaged properties & forged guarantee documents mentioned hereinabove and thereby caused wrongful loss to the bank and corresponding wrongful gain to themselves and, thus, cheated the Bank. Both of them have also been charged with the commission of offence punishable under Section 471 IPC on the allegations that they have fraudulently and dishonestly used the forged documents as genuine despite knowledge of the same or had reasons to believe the same to be forged documents.
244. It already stands proved that firm M/s Gaaman Global Exports got opened a current account through its partners A2 Mahan Mukherjee and A3 Rajendra S. Raikwar in the New Rohtak Road Branch of Punjab National Bank, New Delhi and, thereafter, availed various cash credit facilities from time to time, which money was later on diverted/siphoned off and the account of the firm turned NPA on 31.03.2004. It also stands proved that A2 Mahan Mukherjee and A3 Rajendra S. Raikwar, partners of firm M/s Gaaman Global Exports at the time of availing the cash credit facilities and enhancement thereof, besides offering the stocks of rice as primary security had also offered CC No. 06/12 & ID No. 64/19 Page 218 of 402 State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 mortgage of aforementioned four properties as collateral security. It is also established on record that the owners of the said properties had never mortgaged their properties with the Bank against the loan obtained by M/s Gaaman Global Exports and the title documents of the said properties submitted with the bank were found to be forged. Further, the guarantors produced in the bank were not the real owners but the impersonators and all the guarantee documents purported to be executed by the real owners viz. Agreements of guarantee, letters of continuity, affidavits, indemnity bonds etc. were forged and fabricated and the same were executed by the impersonators.
245. There is also no dispute to the fact that ultimate beneficiaries of the loan availed by M/s Gaaman Global Exports from Punjab National Bank, New Rohtak Road Branch, New Delhi were A2 Mahan Mukherjee and A3 Rajendra S. Raikwar being partners of the firm. Considering the same, role of A2 and A3 is required to be seen minutely in the alleged commission of crime.
246. Let us first examine the role of A2 Mahan Mukherjee in commission of offence punishable under Section 471 IPC.
247. Sh. Javed Hashmi, Ld. Counsel for A2 has submitted that there is no dispute that firm M/s Gaaman Global Exports took cash credit facilities from the Punjab National Bank which were sanctioned and disbursed by the Bank to CC No. 06/12 & ID No. 64/19 Page 219 of 402 State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 expand the business of the firm and the same were secured against stocks of rice which was the primary security. He further submitted that collateral security in the form of mortgage of properties was obtained by the Bank and the same was provided so that if there was any shortfall in repayment of cash credit facilities to the Bank after adjusting the primary security, the interest of the bank could be secured. He vehemently argued that as per own case of the prosecution, A2 Mahan Mukherjee had not forged the documents and no evidence has been led by the prosecution to show as to who made or created the forged documents and at whose instance, and, therefore when A2 was not the maker or creator of the forged documents, no offence under Section 471 IPC is made out against him. He further argued that even there is no evidence to suggest that A2 Mahan Mukherjee had any knowledge about the forgery of documents at the time of availing the cash credit facilities and enhancement thereof from time to time. He submitted that the property documents and the guarantors were got arranged by A5 Anil Kumar Mahajan since A2 Mahan Mukherjee belongs to Kolkatta and being resident of Kolkatta he did not know anybody in Delhi. He further submitted that the Bank before processing and sanctioning the loan proposal of M/s Gaaman Global Exports had got appointed the Advocate on the panel of the Bank to verify the property documents who gave positive report that the CC No. 06/12 & ID No. 64/19 Page 220 of 402 State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 properties were free from all sorts of encumbrance and were mortgageable.
248. Ld. Defence Counsel further submitted that there were also reports of government approved valuer who gave valuation of the properties after physically visiting the properties and having met the owners of the properties. He further submitted that since A2 Mahan Mukherjee was from outside of Delhi, he did not know that title documents of the properties arranged by A5 Anil Mahajan were forged and he relied upon the reports of the panel Advocate and government approved valuer and was convinced that the title documents were perfect. Ld. Defence Counsel has referred the statement of PW35 Sh. Nirbhay Kumar and PW44 Sh. R.P. Bansal to buttress his argument that verification of the title documents was done by the Panel Advocate and the government approved Valuer had also given his report regarding valuation of the properties and there is nothing in their reports to suggest that the property documents were forged. Further, the guarantors who had appeared in the Bank were duly identified by the bank officials as owners of the properties and, therefore, A2 Mahan Mukherjee had no reasons to believe that the title documents were forged. Ld. Defence Counsel while referring the statement of PW18 Smt. Neelam Gulati has also submitted that she might have forged the documents in connivance with A5 Anil Mahajan, whose role has not been CC No. 06/12 & ID No. 64/19 Page 221 of 402 State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 properly investigated by the investigating officer.
249. The contentions so raised by Ld. Counsel for A2 are required to be dealt with one by one.
250. The very first contention of Ld. Defence Counsel is that as per own case of the prosecution, A2 Mahan Mukherjee is neither the creator nor maker of the forged documents nor at his behest the forged documents were got prepared nor there is any evidence on record to suggest as to who is the creator of the forged documents and, therefore, in the absence of any such allegations and evidence, Section 471 IPC is not attracted against A2 Mahan Mukherjee. I do not find any substance in this argument of Ld. Defence Counsel. Although there is no concrete evidence as to who forged the title documents but on this count A2 Mahan Mukherjee cannot be absolved from the liability of using forged documents as genuine which he knew to be forged or had reasons to believe that the said documents were forged. Moreso, when he has been specifically charged for commission of offence punishable under Section 471 IPC and not under Section 464 or 467 IPC.
251. The next contention of Ld. Defence Counsel is that A2 Mahan Mukherjee had no knowledge about the forgery of the documents at the time of availing the cash credit facilities from the bank as he came from Kolkatta and CC No. 06/12 & ID No. 64/19 Page 222 of 402 State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 did not know anybody in Delhi and the property documents were got arranged by A5 Anil Mahajan. I find that this is a very feeble argument. Admittedly, the partners of firm M/s Gaaman Global Exports, namely, A2 Mahan Mukherjee and A3 Rajendra S. Raikwar had approached the Bank for availing loan and cash credit facilities. One of the conditions of the Bank to grant the loan was to hypothecate the stocks of rice with the Bank. Further, to secure the interest of the Bank, immovable property was also to be mortgaged with the Bank as collateral security. In the present case, there is no dispute that four properties were mortgaged as collateral security with the Bank. A borrower cannot be allowed to plead that he did not know the owners/guarantors personally or that property documents were forged. For the sake of argument, one can accept that borrower may not be knowing that title documents of prospective guarantor are genuine or not, free from encumbrance or not, mortgageable or not because that fact remains in the exclusive knowledge of the owner of the property and he has to rely upon the version of guarantor about genuineness of his title documents. If that had been the case, the things may have been understandable. But in the present case, not only the title documents of the mortgaged properties turned out to be forged but even guarantors who were produced in the Bank were impersonators and through those impersonators the guarantee documents were CC No. 06/12 & ID No. 64/19 Page 223 of 402 State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 got executed to secure the loan. In these facts, it does not lie in the mouth of A2 Mahan Mukherjee to contend that he even did not know the guarantors. He cannot be allowed to take this plea on the ground that he was outsider and the title documents and guarantors were arranged by A5 Anil Mahajan.
252. There is one more aspect of the matter. If the plea of A2 Mahan Mukherjee that he did not know about the forgery of documents and execution of guarantee documents by impersonators because it was A5 Anil Mahajan who had arranged the same is assumed to be correct, the same shall be in breach of terms and conditions of loan agreement. As it always remains a condition of the Bank that guarantors should not be purchased and no guarantee commission shall be paid to them for mortgaging their properties as collateral security to secure the loan from the bank. In other words, guarantor should be personally known to the borrower to ensure that the borrower makes the timely payment and in case of default the bank could realize the outstanding liability from the guarantor. This condition is corroborated from the letter dated 08.02.2003 Ex.PW12/VVV in which partners of the firm, A2 Mahan Mukherjee & A3 Rajendra S. Raikwar, undertook that no guarantee commission shall be paid. If that was the case, then it is not understandable as to why A5 Anil Mahajan (since deceased) would arrange the guarantors to secure the loan and credit CC No. 06/12 & ID No. 64/19 Page 224 of 402 State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 facilities availed by M/s Gaaman Global Exports. It is not the case of A2 Mahan Mukherjee that A5 Anil Mahajan (since deceased) was his relative, friend or acquaintance. It is also not the case of A2 Mahan Mukherjee that guarantors were known to him. It leads to inference that guarantors were purchased by A2 Mahan Mukherjee through A5 Anil Mahajan (since deceased). Otherwise, there was no reason for the guarantors to mortgage their immovable properties for securing the loan and cash credit facilities availed by i.e. M/s Gaaman Global Exports to the tune of crores of rupees with the Bank unless there was some consideration. No man of ordinary prudence will stake his immovable property for a person whom he does not know without any consideration because in case the borrower fails to repay the loan amount, his property is liable to be confiscated and auctioned. It shows that purported guarantors were got purchased by A2 Mahan Mukherjee through A5 Anil Mahajan (since deceased) which was in violation of undertaking vide letter Ex.PW12/VVV.
253. There is yet another aspect of the matter. There is no dispute to the fact that photocopy of ration card of Smt. Ram Rakhi, the owner of the property bearing No. A208, Old Gupta Colony, Vijay Nagar, New Delhi was submitted along with the guarantee documents at the time of availing cash credit facility of CC No. 06/12 & ID No. 64/19 Page 225 of 402 State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 Rs. 20 lakhs as her address proof. The said photocopy of ration card of Smt. Ram Rakhi is Ex.PW5/D and bears signatures of A2 Mahan Mukherjee. It is a sort of attestation by A2 that the said photocopy of ration card is the genuine copy of the original, while it has already been proved on record that the photocopy of ration card of Smt. Ram Rakhi Ex.PW5/D is a forged document and does not bear the photograph of Smt. Ram Rakhi.
254. Similarly, photocopy of ration card of Ms. Stella A. Biswas which was submitted at the time of enhancement of credit facility from Rs. 65 lakhs to Rs. 150 lakhs is Ex.PW12/VVVV. This photocopy of ration card of Ms. Stella A. Biswas also bears signature of A2 Mahan Mukherjee again attesting the photocopy of ration card to be genuine copy of the original ration card, however it is established on record that all the documents purported to be submitted by Ms. Stella A. Biswas as a guarantor including her ration card were forged. Even handwritings on the various documents viz. letter Ex.PW12/PPPP by which she had allegedly offered per property as equitable mortgage, Net Worth Statement Ex.PW12/BBBBB were found to be in the handwriting of A1 Arvind Johri (since deceased) as per the CFSL report Ex.PW41/U, which was not challenged by any of the accused persons. It goes to show that A2 Mahan Mukherjee was in the knowledge of forgery of ration card of Smt. Ram Rakhi and of Ms. Stella CC No. 06/12 & ID No. 64/19 Page 226 of 402 State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 A. Biswas and he also knew that the photographs appearing on the ration cards were of impersonators and not of real owners.
255. Even as per the bank witnesses examined by the prosecution from the Branch office, the purported guarantors when produced in the bank were duly identified by A2 Mahan Mukherjee.
256. In this regard, PW23 Sh. Ashok Ramchandani who was posted as Clerk and working in the loan section of PNB, NRB during the relevant time and in whose presence Agreement of Guarantee dated 07.09.2001 Ex.PW5/L purported to be of Smt. Ram Rakhi and Agreement of Guarantee dated 08.03.2002 Ex. PW2/K purported to be of Smt. Shanti Devi were executed and he signed the same as a witness, deposed that he was not personally knowing the guarantors Smt. Ram Rakhi or Smt. Shanti Devi. He further deposed that the borrowers i.e. Mahan Mukherjee and Rajendra S. Raikwar as well as Branch incumbent K.B. Relan told him that the guarantors present on that day were Ram Rakhi and Shanti Devi.
257. Ld. Counsel for A2 has adopted the crossexamination conducted by Sh. Bharat Bhusan, Ld. Counsel for A8 of this witness. In the said cross examination, the witness was shown ration card Ex. PW5/D purported to be of Smt.Ram Rakhi and he admitted that the lady whose photograph is there on CC No. 06/12 & ID No. 64/19 Page 227 of 402 State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 Ex.PW5/D had come to the bank. Similarly, having seen the Relinquishment Deed dated 19.06.2001 Ex.PW2/B purported to be executed in favour of Smt. Shanti Devi, he admitted that the lady whose photograph is pasted on Ex.PW2/B had come to the bank as Shanti Devi.
258. The ration card purported to be of Smt. Ram Rakhi Ex.PW5/D was attested by A2 Mahan Mukherjee as noted herein above. In the entire cross examination by Ld. Counsel for A8, the deposition of PW23 that he did not personally know the guarantors Ram Rakhi or Shanti Devi and he was told by the borrowers Mahan Mukherjee and Rajendra S. Raikwar as well as by Branch incumbent K.B. Relan that the guarantors present on that day were Ram Rakhi and Shanti Devi was not assailed. He was not suggested at all that Mahan Mukherjee did not know Ram Rakhi and Shanti Devi and they were asked by A5 Anil Mahajan to appear in the bank as guarantors.
259. PW38 Sh. Dinesh Kumar Kaushik who in the year 2002 was posted as Clerk in PNB, NRB when K.B. Relan was Branch Manager, having seen the Agreement of Guarantee dated 08.03.2002 Ex.PW2/M (also Ex.PW17/C) purported to be executed by Smt. Shanti Devi and Agreement of Guarantee dated 08.03.2002 Ex. PW5/N (also Ex. PW17/D) purported to be executed by Smt. Ram Rakhi, deposed that he had signed both the above CC No. 06/12 & ID No. 64/19 Page 228 of 402 State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 agreements as a witness. He further deposed that he was not personally knowing Smt. Shanti Devi or Smt. Ram Rakhi. He had not seen their Icards or any identity proof. He had received a call from Sh. Dinesh Parashar who told him that certain witnesses are required and he should come to the Loans Department in the basement. When he went there, accused K.B. Relan, Sh. Ashok Ramchandani, Sh. Dinesh Parashar and Sh.Rajeev Mahajan from the bank and the borrowers i.e. Sh. Arvind Johri and one Mukherjee were present. He further deposed that two ladies who had signed as Shanti Devi and Ram Rakhi were also present and accused K.B. Relan and Sh. Dinesh Parashar told him that both the said ladies were Smt. Shanti Devi and Smt. Ram Rakhi.
260. This witness was not crossexamined by Ld. Counsel for A2 to assail his aforesaid testimony. It goes to show that the two ladies present in the Bank who had signed as Ram Rakhi and Shanti Devi in the presence of A2 Mahan Mukherjee and A1 Arvind Johri (since deceased) were personally known to them and they were produced by Arvind Johri and Mahan Mukherjee as guarantor as loan facilities were to be obtained by M/s Gaaman Global Exports and guarantors were to be produced by them. Otherwise, there was no reason for the purported guarantors/impersonators to appear in the Bank on their own to execute the guarantee documents.
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261. In the light of aforesaid discussions, the contention of A2 Mahan Mukherjee that he did not know about the forgery of title documents or that he did not know the fact that guarantors were not the real owners of the mortgaged properties as they were arranged by A5 Anil Mahajan is not acceptable and is liable to be rejected.
262. Another contention of Ld. Counsel for A2 is that PW18 Smt. Neelam Gulati alongwith A5 Anil Mahajan (since deceased) with whom she was working as peon might be behind the forgery of documents. He based his argument on the statement of PW18 Smt. Neelam Gulati made during her examinationinchief wherein she has imputed certain allegations against A5 Anil Mahajan of forgery of documents.
263. Of course, PW18 Smt. Neelam Gulati has made imputations against A5 Anil Mahajan (since deceased) in forgery of documents in her examinationinchief. However, it is surprising to note that Ld. Counsel for A2 did not crossexamine PW18 Smt. Neelam Gulati at all and in the absence thereof, the contention of Ld. Counsel for A2 that PW18 may have forged the documents in connivance with A5 Anil Mahajan has no legs to stand. Further, since the proceedings qua A5 Anil Mahajan stands abated, no findings are to be given against him. Hence, the statement of PW18 Smt. Neelam Gulati will be CC No. 06/12 & ID No. 64/19 Page 230 of 402 State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 of no help to the case of A2 Mahan Mukherjee that she might be behind the forgery of documents in connivance with A5 Anil Mahahan.
264. Ld. Counsel for A2 has also referred the statements of PW12 Sh. R.M. Sachdeva, PW35 Sh. Nirbhay Kumar & PW44 Sh. R.P. Bansal and submitted that they have admitted that the verification of title documents of the mortgaged properties was got done by panel advocate of the Bank and valuation of the properties was also given by the government approved valuer before processing of the loan application of the borrower firm and, therefore, A2 Mahan Mukherjee was convinced that title documents of the mortgaged properties were perfect and in order. Further, the guarantors were duly identified by the bank officials in whose presence the guarantee documents were executed.
265. I do not find any justification of A2 Mahan Mukherjee in relying upon the report of panel Advocate of the bank and valuation report given by the government approved valuer in respect of mortgaged properties to say that he was satisfied that the documents and the guarantors were genuine. The panel advocate was appointed by the bank to verify the title documents of the mortgaged properties and valuer was appointed to give the valuation of the mortgaged properties and it was internal mechanism of the Bank to ascertain the validity and authenticity of the documents. The reliability of the genuineness of CC No. 06/12 & ID No. 64/19 Page 231 of 402 State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 the documents and identification of the guarantors was not dependent on the panel advocate report or the valuer report and A2 Mahan Mukherjee cannot take benefit of the same. It was borrower who was obtaining the loan and credit facilities from the bank and was supposed to submit the original title documents of the mortgaged properties and to produce the genuine guarantors. A2 Mahan Mukherjee being the borrower cannot take shelter of report of panel advocate and the statement of the bank officials to absolve from the criminal liability for producing the impersonators instead of real owners/guarantors.
266. Similarly, identification of the purported guarantors by the bank witnesses as real owners will not absolve A2 from liability of using forged documents as genuine despite knowledge of the same or having reasons to believe the same to be forged one. The bank officials had identified the guarantors whose photographs were affixed on the guarantee documents annexed with the loan applications and who were produced by the borrowers in the Bank. If the impersonators were produced by the borrower by forging the title documents, ID proofs of real owners and those impersonators whose photograph were there on the title documents, guarantee documents and ID documents, then their identification by the bank officials as guarantors/real owners would not advance the case of A2 Mahan Mukherjee that he was CC No. 06/12 & ID No. 64/19 Page 232 of 402 State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 convinced that the title documents and guarantee documents were perfect.
267. Further, perusal of the file Ex.PW12/IIII (Colly) of Punjab National Bank, New Rohtak Road Branch, which was maintained in the bank during the official course of business and seized from PW35 Sh. Nirbhay Kumar by the IO vide seizure memo Ex. PW46/D shows that it contains a letter dated 03.07.2003 Ex. PW41/N written by A2 Mahan Mukherjee to the Sr. Manager PNB on the subject income tax returns and identity/ address proofs of borrowers and guarantors on their account. This letter has been sent in response to the letter of the Branch Office by which the ITRs and ID proofs of guarantors were required from borrowers. Vide this letter Ex.PW41/N, A2 Mahan Mukherjee has informed that Smt. Shanti Devi, Smt Ram Rakhi are not filing IT returns and address proof has already been submitted in the branch. It was further informed that Mrs S.A. Biswas is out of station for some time now and her returns will be submitted shortly and address proof has already been submitted in the branch. It was further informed that IT return of Mr Anil Kumar Jaggi will be submitted within a week and address proof has already been submitted in the branch.
268. Now, question arises as to who told A2 Mahan Mukherjee that Smt. Ram Rakhi and Smt. Shanti Devi were not filing the income tax returns as Smt Ram Rakhi had died in the year 1990 and Smt Shanti Devi was mentally CC No. 06/12 & ID No. 64/19 Page 233 of 402 State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 retarded; and further that who told A2 Mahan Mukherjee that Anil Kumar Jaggi was out of station when PW1 Sh. Anil Kumar Jaggi has categorically deposed that he did not know the partners of the firm which testimony has remained unrebutted. Similarly, A2 Mahan Mukherjee in the said letter claimed to have already submitted the ID proof of guarantors viz Smt Ram Rakhi, Smt Shanti Devi, Smt Stella. A. Biswas and Sh Anil Kumar Jaggi. However, the photocopy of ration card of Smt Ram Rakhi Ex. PW5/D and of S.A. Biswas Ex. PW12/VVVV which were submitted by the partners of the firm alongwith the loan documents as ID proof of the guarantors and also attested by A2 Mahan Mukherjee have been found to be forged. In these facts, it is not understandable as to who told A2 Mahan Mukherjee that Smt Stella A Biswas was also not filing the income tax returns because her ID proof was found to be forged. Though A2 Mahan Mukherjee has claimed that the guarantors were arranged by A5 Anil Mahajan but there is no mention in this letter about the said fact that the guarantors have been arranged by one Anil Mahajan as sureties of the firm for availing cash credit facility from the bank. Furthermore, there is no single communication on the record at any point of time by the partners of the firm with the bank intimating that the guarantee documents and the guarantors were arranged by one Anil Mahajan and they did not know CC No. 06/12 & ID No. 64/19 Page 234 of 402 State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 personally about the genuineness of the title documents of the properties which are to be mortgaged and also about the identity of the guarantors. This plea that the guarantee documents were arranged by Anil Mahajan and he did not know anything about the same has been taken by A2 Mahan Mukherjee for the first time in his statement recorded under Section 313 Cr.P.C.
269. It is surprising to note here that though A2 Mahan Mukherjee has examined himself in his defence under Section 315 Cr.P.C but he has not made even a whisper of the plea which he has taken in his statement under Section 313 Cr.P.C regarding the guarantee documents arranged by A5 Anil Mahajan or that he did not know about the forged documents for the reasons best known to him that why he did not depose on oath about the said facts. Heavy onus was cast upon A2 Mahan Mukherjee to prove that it was not within his knowledge that the title documents were forged and the guarantors were fake persons / impersonators but no shred of evidence has been led by A2 to discharge the onus and substantiate the said defence. He has not disclosed that how he came into contact with Anil Mahajan, who was the source and through whom he had met Anil Mahajan, on what terms and conditions Anil Mahajan had agreed to provide the guarantors by mortgaging their immovable properties to secure the loan and other cash credit facilities from the bank by the firm. If A2 Mahan CC No. 06/12 & ID No. 64/19 Page 235 of 402 State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 Mukherjee did not know the guarantors then it was within his specific knowledge that on what terms and conditions the so called guarantors / impersonators agreed to stand sureties for the firm. If A2 Mahan Mukherjee did not know the guarantors personally and same were arranged by Anil Mahajan then it cannot be accepted that he did not check their credentials and blindly accepted the guarantors arranged by Anil Mahajan. All these go to show that A2 Mahan Mukherjee had every knowledge or reasons to believe that the title documents of mortgaged properties were forged and the guarantors were not the real owners of the mortgaged properties but the impersonators.
270. In view of the above evidence on record, oral as well as documentary, it is clear that A2 had knowledge or reasons to believe that the title documents which were submitted for securing the loan and credit facilities were forged and even the guarantors who were produced in the bank were fake persons and forged guarantee documents were executed by the impersonators and he used the same as genuine and hence he is found guilty of offence punishable under Section 471 IPC.
271. Let us now examine whether the ingredients of offence of cheating under Section 420 IPC are made out against A2 Mahan Mukherjee.
272. Ld. Counsel for A2 has vehemently argued that to constitute an CC No. 06/12 & ID No. 64/19 Page 236 of 402 State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 offence of cheating, the intention to deceive should be in existence at the time when the inducement was made, however A2 had no intention to cheat the Bank and if he had any such intention, he would not have given guarantee of his mother Smt. Shefali Mukherjee and of his fatherinlaw Sh.A. Banerjee to secure the loan. He further argued that even if title documents of the mortgaged properties were turned out to be forged, but still stock of rice as primary security was kept with the bank. He submitted that if A2 Mahan Mukherjee had given securities of his relatives and was also maintaining parallel stock equal to credit facilities as primary security, question of cheating does not arise. He also submitted that the bank has already recovered Rs.1 crore in DRT proceedings in respect of property bearing No. N154, Greater Kailash, PartI, New Delhi of Smt. Shanti Devi and also realized the amount from stocks worth Rs. 1.39 crores besides stocks at Gandhi Dham and, therefore, it cannot be said that any wrongful loss has been caused to the bank. He further submitted that account of the firm turned NPA in the year 2004 and if A2 Mahan Mukherjee had any intention to cheat the bank, the account of the firm would not have run smoothly for three years.
273. As noted above, M/s Gaaman Global Exports got opened a current account in New Rohtak Road Branch of Punjab National Bank vide Account CC No. 06/12 & ID No. 64/19 Page 237 of 402 State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 Opening Form Ex.PW12/I and availed CC (H) limit of Rs. 20 lakhs which was sanctioned on 07.09.2001 and thereafter availed enhancement of credit facilities and various other credit facilities from time to time upto 10.03.2003 when last credit facility in the form of packing credit limit was granted. M/s Gaaman Global Exports, in this manner, availed total cash credit facilities to the tune of Rs.3.15 crore approximately. The account of the firm turned NPA on 31.03.2004 with an outstanding amount of Rs.340.65 lakhs. PW29 Sh. V.K. Kapoor, the Internal Auditor who conducted the audit of accounts of M/s Gaaman Global Exports in his report Ex.PW29/B has assessed the NPA amount at Rs.3.52 crores approximately and the said figure has not been disputed by the accused persons.
274. The very first contention of Ld. Counsel for A2 Mahan Mukherjee is that he had no dishonest intention to cheat the bank and if he had any such intention, he would not have given guarantee of his mother Smt. Shefali Mukherjee and of fatherinlaw Sh. A. Banerjee. I do not find any merit in this contention because the personal guarantee was required to be furnished by the borrower as per the terms and conditions of the sanction of credit facilities and, thus, if A2 being partner of borrower firm had given guarantee of his relatives, it cannot be concluded from this that there was no intention to deceive the bank. CC No. 06/12 & ID No. 64/19 Page 238 of 402
State vs. Arvind Johri. & Ors Judgment dt.18.10.2022
275. Similarly, the contention of Ld. Counsel for A2 Mahan Mukherjee that account of the firm turned NPA on 31.03.2004 and had A2 any dishonest intention, the account would not have run smoothly for three years is without any merit. It is apparent that initially loan of Rs. 20 lakhs was sanctioned by the bank on 07.09.2001 to the firm and, thereafter, it was enhanced from time to time and lastly Packing Credit Limit was sanctioned for Rs.1.5 crore on 10.03.2003 by the Regional Office in addition to the already sanctioned facilities to the tune of Rs. 1.75 crore. The account of the firm became irregular after May/June 2003. PW12 Sh. R.M. Sachdeva has also stated in his cross examination by A8 K.B, Relan that the account of M/s Gaaman Global Exports turned bad after all the limits had been sanctioned and it was about September 2003. It has already been established that an amount of Rs.10,05,000/ was siphoned off from the loan account of M/s Gaaman Global Exports to the current account of M/s Swastik Exports with whom there was no sale/purchase or transaction of M/s Gaaman Global Exports. There was no justification for transferring the amount in the account of M/s Swastik Exports. The said account of M/s Swastik Exports was opened in New Rohtak Road Branch of Punjab National Bank in the year 2002 vide account opening form Ex. PW22/A and the same was also closed in the same year. Thereafter, new modus operandi was CC No. 06/12 & ID No. 64/19 Page 239 of 402 State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 evolved for transferring the funds of the firm by the partners A2 & A3. The accounts in the name of M/s Balaji Trading Company in City Union Bank, Karol Bagh, New Delhi and M/s L.B. Enterprises in Shalimar Bagh Branch of Corporation Bank at New Delhi were got opened in the month of January 2003 and another account in the name of M/s Balaji Trading Company in IndusInd Bank, Nehur Place, New Delhi was got opened on 28.02.2003 through Raja Ram Sharma. Thereafter, when PC limit was sanctioned for Rs. 1.5 crores under the guise of export of rice, a substantial amount of Rs. 78,60,333.25/ was transferred and diverted in the said account of M/s Balaji Trading Company in IndusInd Bank, Nehru Place, New Delhi besides other amounts in the account of M/s Balaji Trading Company and M/s L.B. Enterprises. The money so transferred was later on got withdrawn by A1 Arvind Johri & A2 Mahan Mukherjee of the firm through their employee Raja Ram Sharma. Therefore, to argue that there was no intention to cheat the bank as the account was running smoothly till 2003 is fallacious argument because by that time no major enhancement was sanctioned by the bank and when the sanctioned amount reached to peak in the month of March 2003 with the approval/sanction of Packing Credit limit of Rs.1.5 crore totaling to Rs. 3.25 crores, the amounts were got siphoned off/diverted.
CC No. 06/12 & ID No. 64/19 Page 240 of 402
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276. So far as the contention of Ld. Defence Counsel that stocks of Rs. 1.39 crores were available with the bank as per inspection carried out by the bank officials and an amount of Rs. 1 crore was also realized by the bank in the DRT proceedings is concerned, first of all, though at the time of inspection, the bank official had assessed the value of the stocks at Rs.1.39 crores but PW29 Sh. V.K. Kapoor, the internal auditor of the bank had assessed the value of the stocks at Rs. 1.03 crores. The said figure has not been disputed by A2 & A3. Realization of amount of Rs. 1 crore by the bank in DRT proceedings in respect of property bearing No. N154, Greater Kailash, Part I, New Delhi of Smt.Shanti Devi in the year 2011 will not absolve A2 Mahan Mukherjee from the criminal liability of cheating.
277. A perusal of certified copy of order dated 09.06.2011 Ex.DW1/A passed by Debts Recovery Tribunal shows that the settlement was taken place between the bank and owner of company, namely, M/s Ekka Buildwell Pvt. Ltd.. As such, even there was no compromise between the bank and the borrower firm M/s Gaaman Global Exports.
278. The contention of A2 Mahan Mukherjee that stocks were available at Gandhi Dham, Gujarat and, therefore, no wrongful loss has been caused to the bank is also liable to be rejected. Admittedly, the Packing Credit CC No. 06/12 & ID No. 64/19 Page 241 of 402 State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 limit was obtained by the firm to export the Basmati rice, but there is ample evidence on record to suggest that the shipment was not exported. There were repeated communications by the bank to the firm to provide LC of the foreign bank but the same were not responded to.
279. Vide letter dated 16.09.2003 which find contained in the file Ex. PW12/IIII (Colly), the firm M/s Gaaman Global Exports through A2 Mahan Mukherjee and addressed to Sr. Manager PNB informed that they have already dispatched the cargo to the port which is lying in their agent's godown at Gandhi Dham, Kutch, they shall be shipping the cargo as soon as they receive valid L/Cs from buyer subject to availability of vessels to the destination port DAMAM and will submit the documents to the branch to regularize the accounts and to bear with them for the delay.
280. Vide letter Ex.PW12/D25 written by Branch Manager K.B. Relan to the Regional Office, it was proposed to request the Branch Office, Gandhi Dham (Kutch), Gujarat for inspection of stock lying at the godown of M/s Star Freight Forwarders as informed by A2 Mahan Mukherjee vide letter dated 16.09.2003.
281. There is a status note dated 27.10.2003 of the Regional Office in file Ex.PW31/DD (Colly) made by Deputy Manager, Sr. manager (Credit) and CC No. 06/12 & ID No. 64/19 Page 242 of 402 State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 Chief Manager addressed to Sr. Regional Manager regarding accounts of M/s Gaaman Global Exports and inspection of stocks lying at M/s Star Freight Forwarders, Ghandi Dham. It has reference that vide letter dated 23.09.2003, Branch Office had informed that M/s Gaaman Global Exports sent goods to M/s Star Freight Forwarders, Gandhi Dham, Gujarat. Regional Manager, Rajkot region was requested to issue instructions to the Branch Office, Gandhi Dham, Gujarat for carrying out inspection of above stocks. The Branch Office, Kandla Port has informed that they tried their best to find out the address of said M/s Freight Forwarders but in vain and the telephone number mentioned on the letter head is totally wrong. It was proposed to advice Branch Office, NRB to depute an officer for carrying out the inspection of the stocks lying at Gandhi Dham. The said proposal was sanctioned by the Sr. Regional Manager vide Ex. PW31/D5.
282. The file Ex. PW31/DD (Colly) contains a letter dated 15.11.2003 written by A3 Rajendra S Raikwar to the Sr. Manager PNB that there was no pressing need for the time being for verification of stock lying at Gandhi Dham since cargo will be in transit from godown to port and to postpone the inspection as per discussion held with Sr. Regional Manager, North Delhi.
283. However, Regional Office vide communications dated 18.11.2003, CC No. 06/12 & ID No. 64/19 Page 243 of 402 State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 25.11.2003, 28.11.2003 and 04.12.2003 which are contained in File Ex. PW31/DD (Colly) insisted the Branch Manager to personally visit Gandhi Dham and to check the stocks.
284. There is a letter dated 29.12.2003 in File Ex. PW31/DD (Colly) written by A2 Mahan Mukherjee to the Sr. Manager, PNB, NRB where in para no. 3 it is mentioned as under: "Reg. Stock inspection at Gandhi Dham as already discussed with you, the godown used by the clearing agents in Gandhi Dham are very large in size and contain all kinds of material of many parties incoming our rice at any given points of time also the checking is also not very systematic as stocking is mostly for short period. Our material has to stacked clear of other goods to enable proper counting of bags, however, our agent assure us that this has been accomplished to some extent and we have booked ticket for departure for Gandhi Dham for Mr K.B. Relan, Sr. Manager and Sh A. Johri our CEO for 2nd January Friday."
285. Pursuant to the said letter, the Branch Manager K.B. Relan visited Gandhi Dham to verify the stocks and submitted his report dated 09.01.2004 Ex.PW12/D23. In the said report, it was mentioned that M/s Star Freight Forwarders was not registered and its name did not appear with the list of other registered freight and forwarders operating in the area. The stocks could not be CC No. 06/12 & ID No. 64/19 Page 244 of 402 State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 verified. There was no representative of M/s Star Freight Forwarders and Mr Johri could not be contacted. Even the partners of the firm submitted forged quotation and firm M/s L.B. Enterprises whose performa invoices were submitted to release the PC limit was not found.
286. There is another letter dated 09.01.2004 Ex. PW12/D22 sent by accused K.B. Relan to the Regional Office regarding inspection of stocks at Gandhi Dham. In the said letter, it is stated that the CEO of the firm could not locate / show the stock but insisted that the stock was lying at various godowns. Considering the conduct of the party and its representative / agent and their body language, it appears that either the stock of rice was not sent to Gandhi Dham or the same has been disposed off.
287. The above reports are being made by the branch officer to the Regional Office despite the fact that vide letter dated 29.12.2003, A2 Mahan Mukherjee has assured to keep the stocks of rice segregated from other goods to enable proper counting of bags. It all shows that partners of the firm M/s Gaaman Global Exports had availed the packing credit limit to the tune of Rs. 1.50 crores for export of rice but the said money was siphoned off as the stock of rice was not found at Gandhi Dham and it leads to irresistible conclusion that either the stock of rice was not purchased or the same was CC No. 06/12 & ID No. 64/19 Page 245 of 402 State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 disposed of. Further, no evidence has been led by partners of the firm Mahan Mukherjee and Rajendra S Raikwar that though at the time of visit of accused K.B. Relan at Gandhi Dham, the stock of rice was not traceable but later on the said stock was identified and surrendered to the bank.
288. There is yet another aspect of the matter. The file Ex. PW12/IIII (Colly) contains a letter dated 05.03.2004 written by Mahan Mukherjee to Sr. Manager, PNB, NRB by which he was seeking time to get the stocks audited and also to regularize the account mainly PC and CC accounts and assured to inform regularly about the day to day progress of the revival of their business process. It shows that he was very much aware about the condition of the account that it was running very irregular for the last many months and there was repeated communication from the bank to regularize the account and also the stock at Gandhi Dham could not be identified and located. If he was not a party to the criminal conspiracy and did not siphon off the funds and claimed that he was cheated by Arvind Johri and Raja Ram Sharma who had siphoned off the funds, then it is not understandable that why he did not initiate any action, criminal or civil, against Arvind Johri and Raja Ram Sharma for cheating and siphoning off the funds. This court is conscious of the fact that Arvind Johri had died in the year 2011. But nothing has been brought on record by A2 CC No. 06/12 & ID No. 64/19 Page 246 of 402 State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 Mahan Mukherjee that he had taken any action against Arvind Johri and Raja Ram Sharma when he was aware of the condition of the account and the stocks position in the year 20032004 itself. It all shows that A2 has taken a lame excuse that he has been cheated by Arvind Johri and Raja Ram Sharma.
289. Ex. PW31/ZZ which is a status note dated 06.10.2003 put up by the Sr. Manager (Credit) and the Chief Manager, Regional Office by which it was proposed that the account of M/s Gaaman Global Exports may be tagged with 40% sales tagging. It was also observed that firm is not depositing sale proceeds since 03.06.2003 and account is running irregular since March 2003. The said proposal was sanctioned by PW4 Sh Ved Vyas, DGM.
290. It again shows that after siphoning off the funds by A2 Mahan Mukherjee through the accounts of M/s Balaji Trading Company & M/s L.B. Enterprises which were opened in January 2003, huge money of more than Rs. 1 crore was diverted through these accounts upto April 2003. Thereafter, the account of the firm M/s Gaaman Global Exports became irregular and sale proceeds were not deposited since 03.06.2003 as same had been siphoned off. The said status note Ex. PW31/ZZ was made on the basis of status note dated 01.10.2003 sent by the Branch and the Branch had made said status note after taking explanation from the firm M/s Gaaman Global Exports vide letter dated CC No. 06/12 & ID No. 64/19 Page 247 of 402 State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 01.10.2003. Hence, the contents of Ex. PW31/ZZ are not in dispute.
291. The plea of A2 Mahan Mukherjee that he had been cheated by Arvind Johri and Raja Ram Sharma and that Raja Ram Sharma opened the account in the name of firms which already existed at Naya Bazar with whom they had business dealings is further falsified. Ex. PW7/I is the letter written by Raja Ram Sharma to the Manager Indusind Bank Ltd intimating that he has shifted the address of the firm M/s Balaji Trading Company from H29B Kalkaji Delhi to A1/161 Safdarjung Enclave, New Delhi.
292. There is a letter dated 10.12.2003 in the file Ex. PW12/IIII (Colly) which is written by Mahan Mukherjee to Sr. Manager, PNB, NRB regarding change of address. It is informed in the said letter that they have shifted their head office from G115 Vikaspuri New Delhi18 to A1/161 Safdarjung Enclave, New Delhi. Subsequent to the said information regarding change of address, there are various communications in the file Ex. PW12/IIII (Colly) exchanged between the Bank and the firm M/s Gaaman Global Exports on the said changed address of Safdarjung Enclave.
293. Interestingly, it is the same address of which Raja Ram Sharma had intimated the Bank Manager of Indusind Bank regarding shifting of address of his firm M/s Balaji Trading Company from Kalkaji to Safdarjung Enclave. CC No. 06/12 & ID No. 64/19 Page 248 of 402
State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 Surprisingly, the mobile phone numbers given by Raja Ram Sharma in the letter Ex. PW7/I of the address A1/161 Safdarjung Enclave, New Delhi were 51651992 and 51652092. The similar telephone numbers have been given as their new telephone numbers by A2 Mahan Mukherjee vide his letter dated 10.12.2003. So, it again shows that the accounts in the bank of the firm M/s Balaji Trading Company and M/s L.B. Enterprises were got opened by the partners of the firm in the name of their employee Raja Ram Sharma just to divert the funds of the firm M/s Gaaman Global Exports through these accounts.
294. The judgments relied upon by the Ld. Counsel for A2 in support of his contentions are also required to be discussed here.
295. Ld. Counsel for A2 has laid much emphasis upon the judgments in "Sheila Sebastian vs. R. Jawaharaj & Anr.", Criminal Appeal Nos. 359360 of 2010 and "Mohd. Ibrahim & Ors. vs. State of Bihar & Anr.", Criminal Appeal No. 1659 of 2009 of the Hon'ble Supreme Court to argue that in the absence of imposter and maker of the forged documents, A2 cannot be held guilty for the offence punishable under Section 471 of the IPC.
296. There is no dispute to the proposition laid down in these two judgments. In Mohd. Inbrahim case (supra), the Hon'ble Apex Court had occasion to examine forgery of a document purporting to be a valuable security CC No. 06/12 & ID No. 64/19 Page 249 of 402 State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 (section 467 IPC) and using of forged document as genuine (Section 471 IPC) and has observed has under: "There is a fundamental difference between a person executing a sale deed clamming that the property conveyed is his property, and a person executing a sale deed by impersonating the owner or falsely claiming to be authorized or empowered by the owner, to execute the deed on owner's behalf. When a person executes a document conveying a property describing it as his, there are two possibilities. The first is that he bona fide believes that the property actually belongs to him. The second is that he may be dishonesty or fraudulently claiming it to be his even though he knows that it is not his property. But to fall under first category of 'false documents', it is not sufficient that a document has been made or executed dishonesty or fraudulently. There is further requirement that it should have been made with the intention of causing it to be believed that such document was made or executed by, or by the authority of a person, by whom or by whose authority he knows that it was not made or executed.
When a document is executed by a person claiming a property which is not his, he is not claiming that he is someone else nor is he claiming that he is authorized by someone else. Therefore, execution of such document (purporting to convey some property of which he is not the owner) is not execution of a false document as defined under Section 464 of the Code. If what is CC No. 06/12 & ID No. 64/19 Page 250 of 402 State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 executed is not a false document, there is no forgery. If there is no forgery, then neither Section 467 nor Section 471 of the Code are attracted."
297. The facts in Sheila Sebastian case (supra) are required to be noted. In the said case, the complainant was the owner of a plot. She had alleged in her complaint that A1 with the aid of an imposter who by impersonating as complainant created a Power of Attorney (PoA) in his name as if he was her agent. It was further alleged that, using the aforesaid PoA, A1 attempted to transfer the property of complainant by executing a mortgage deed in favour of A2. On the basis of said complaint, the FIR was registered against the accused persons. After trial, the Ld. Judicial Magistrate convicted A1 under Section 465 IPC & A2 under Section 465 IPC read with Section 109 IPC. An appeal was preferred by the accused persons and the Ld. Sessions Judge upheld the order of conviction. In a revision, Hon'ble High Court of Madras set aside the order of conviction and acquitted the accused persons. Against the order of Hon'ble Madras High Court, an appeal was preferred in the Hon'ble Supreme Court. The Hon'ble Apex Court referring its observations made in Mohd. Ibrahim (supra) has observed as under:
25. Keeping in view the strict interpretation of penal CC No. 06/12 & ID No. 64/19 Page 251 of 402 State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 statute i.e referring to rule of interpretation wherein natural inferences are preferred, we observe that a charge of forgery cannot be imposed on a person who is not the maker of the same. As held in plethora of cases, making of a document is different than causing it to be made. As Explanation 2 to Section 464 further clarifies that, for constituting an offence under Section 464 it is imperative that a false document is made and the accused person is the maker of the same, otherwise the accused persons is not liable for the offence of forgery.
26. The definition of false document is a part of the definition of forgery. Both must be read together. Forgery and Fraud are essentially matters of evidence which could be proved as a fact by direct evidence or by inferences drawn from proved facts. In the case in hand, there is no finding recorded by the trial Court that the respondents have made any false document or part of the document/record to execute mortgage deed under the guise of that false document. Hence, neither respondent no. 1 nor respondent no. 2 can be held as makers of the forged documents. It is the imposter who can be said to have made the false document by committing forgery. In such an event the trial court as well as appellate court misguided themselves by convicting the accused. Therefore, the High Court has rightly acquitted the accused based on the settled legal position and we find no reason to interfere with the same. CC No. 06/12 & ID No. 64/19 Page 252 of 402
State vs. Arvind Johri. & Ors Judgment dt.18.10.2022
298. In para no. 29, it was further observed as under: "Although we acknowledge the appellant's plight who has suffered due to alleged acts of forgery, but we are not able to appreciate the appellant's contentions as a penal statute cannot be expanded by using implications. Section 464 of the IPC makes it clear that only the one who makes a false document can be held liable under the aforesaid provision".
299. The Hon'ble Apex Court also took note in para no. 28 that : "This case on hand is a classic example of poor prosecution and shabby investigation which resulted in the acquittal of the accused. The investigating officer is expected to be diligent while discharging his duties. He has to be fair, transparent and his only endeavour should be to find out the truth. The Investigating officer has not even taken bare minimum care to find out the whereabouts of the imposter who executed the PoA. The evidence on record clearly reveals that PoA was not executed by the complainant and the beneficiary is the accused, still the accused could not be convicted".
300. As such, the facts in the said case were entirely different and distinguishable. First of all, in the said case, the accused persons were convicted CC No. 06/12 & ID No. 64/19 Page 253 of 402 State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 under Section 465 IPC and there was no issue of using the forged documents as genuine under Section 471 IPC. Secondly, it was clearly observed in para no. 26 that Trial Court had not recorded any finding that accused has made any false document and therefore accused cannot be convicted under section 465 IPC. In para no. 29, it was clearly held that under Section 464 IPC only the person who has made a false document can be held liable. Further, in the said case as noticed there was no evidence that who was the imposter and the IO had not investigated the said fact. However, in the present case, there is evidence on record beyond reasonable doubt that the title documents submitted by the guarantors along with the loan applications were forged. Even the guarantors were fake persons and impersonators were produced in the bank. A2 & A3, the partners of the borrower firm were not charged for the offence punishable under Section 465 IPC for making false document but they have been charged for the offence punishable under Section 471 IPC for using the forged documents as genuine despite knowledge or having reasons to believe the same to be forged.
301. Further, in this case, the prosecution has arrayed the accused persons who impersonated the owners of the properties except of Smt. Ram Rakhi and also arrayed accused Anil Kumar Mahajan, the person who forged the documents. Though the said impersonators and Anil Kumar Mahajan died CC No. 06/12 & ID No. 64/19 Page 254 of 402 State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 during the proceedings of the case and proceedings against them stood abated and no findings has been returned against them.
302. Hence, the aforesaid judgments shall be of no help to A2 Mahan Mukherjee as he has not been charged for the offence of making a forged document under Section 464 or 467 IPC.
303. In "Harmanpreet Singh Ahluwalia & Ors. vs. State of Punjab & Ors.", 2009 IV AD (Cr.) (S.C.) 326, the another judgment relied upon by Ld. Counsel for A2, the facts of the case are entirely different. In the said case, the elements of wrongful intention did not exist in the FIR and on the particular facts and circumstances of the said case, the Hon'ble Supreme Court held that FIR should have been quashed u/s 482 Cr.P.C. Again this judgment is of no help to the case of A2 Mahan Mukherjee.
304. Another judgment relied upon by Ld. Counsel for A2 is "Mohd. Asad Madani vs. Central Bureau Investigation", 2020 (1) JCC 67 in which it has been held by the Hon'ble Delhi High Court that in order to constitute an offence of cheating, the intention of deceive should be in existence at the time when the inducement was made. It is necessary to show that a person had fraudulent or dishonest intention at the time of making the promise, to say that CC No. 06/12 & ID No. 64/19 Page 255 of 402 State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 he committed an act of cheating.
305. There is no dispute to the said proposition of law, but in the facts and circumstances of the present case, there is sufficient evidence on record to show that partners of the borrower firm had dishonest intention to cheat the bank since inception by inducing it to sanction the loan and enhancement of credit facilities on the basis of forged title documents and producing the impersonators as guarantors and thereby availed the huge funds which later on were siphoned off and thus caused wrongful loss to the bank and wrongful gain to them.
306. In "Central Bureau of Investigation vs. M.P. Gupta & Ors.", 2020 1 JSCC 658 of the Hon'ble High Court, the next judgment relied upon by Ld. Counsel for A2, the facts are different as in the said case there was no evidence that any undue profit was made by M/s Nestor Pharmaceuticals Ltd. to whom the contract was awarded or that the goods supplied by the said company were substandard or did not meet the specifications or M/s Nestor Pharmaceuticals Ltd. breached the contractual obligation and hence the said judgment was based on the particulars facts of the said case and is not applicable.
307. Ld. Counsel for A2 has also placed reliance upon "M/s Kothari Polymers Ltd. vs. SIU (X)/SPE/CBI", Criminal Appeal No. 239/2015 and CC No. 06/12 & ID No. 64/19 Page 256 of 402 State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 Nikhil Mercahnt vs. CBI & Anr", Criminal Appeal No. 1302 of 2008 decided on 20.08.2008.
308. In the said cases, the parties had settled the matter and criminal proceedings could not be compounded as the offences were u/s 468, 471 and 420 IPC and the same were non compoundable. But keeping in view the settlement and compromise between the parties, the Hon'ble Supreme Court quashed the proceedings. However, this judgment will not advance the case of A2 in any manner as the Hon'ble Supreme Court in its jurisdiction and exercising the powers quashed the proceedings in respect of non compoundable offences also. Moreover, in this case, neither there is any settlement between the bank and the borrower firm nor any compounding of the offences.
309. The facts and circumstances as narrated above in addition to the documentary evidence on record clearly show dishonest intention of A2 Mahan Mukherjee since inception to cheat the bank. In fact, the account was opened in the name of the firm in the PNB, NRB, New Delhi just to avail the loan facilities under the garb of expansion of business and after receipt of the loan amount to siphon off the amount so received. He has also succeeded in his illegal design to cheat the bank by inducing it to grant various credit facilities and enhancement CC No. 06/12 & ID No. 64/19 Page 257 of 402 State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 thereof in favour of the firm M/s Gaaman Global Exports from time to time on the strength of forged documents and production of impersonators as guarantors. It already stands proved that A2 Mahan Mukherjee after sanction of large amount as loan in the form of packing credit limit in the month of March 2003 has siphoned off the funds of the firm received from the bank by transferring it to the accounts of fake firms opened through his employee Raja Ram Sharma; and subsequently withdrawing the amount in cash from those accounts; and, thus, thereby he has caused wrongful loss to the bank and corresponding gain to himself. Hence, A2 is also found guilty of offence punishable under Section 420 IPC.
310. Now, coming to the role of A3 in commission of alleged offences.
311. Ld. Counsel for A3 has vehemently argued that A3 Rajendra S. Raikwar did not participate in the criminal activities; he was not the active partner in the firm M/s Gaaman Global Exports; and most of the time he used to remain in Mumbai; and he just signed on the documents on the asking of active partner A2 Mahan Mukherjee who was managing day to day affairs of the firm. He further submitted that A3 was not known to the impersonators and no bank CC No. 06/12 & ID No. 64/19 Page 258 of 402 State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 witness at the branch has identified him as the person who had appeared in the bank on behalf of the firm and it shows that whenever signatures of A3 Rajendra S. Raikwar were required for obtaining the loan by M/s Gaaman Global Exports, he was just made to sign on the documents by active partner A2 Mahan Mukherjee. Ld. Counsel for A3 while referring the statement of PW7 Raja Ram Sharma has vehemently argued that PW7 did not name A3 Rajendra S. Raikwar in siphoning off the funds of the firm or that he was beneficiary of the money withdrawn from the loan account of the firm through Raja Ram Sharma. He submitted that involvement of A3 is only circumstantial and, in fact, he had no role in criminal activities in any manner and he is victim of circumstances.
312. These arguments are required to be dealt with one by one.
313. The first contention of Ld. Counsel for A3 is that A3 Rajendra S. Raikwar was not active partner in the firm M/s Gaaman Global Exports and day to day affairs of the firm were being managed by A2 Mahan Mukherjee; and A 3 just signed on the documents as and when asked by A2 for the purpose of obtaining the loan and other credit facilities.
314. There is no dispute to the fact that M/s Gaaman Global Exports CC No. 06/12 & ID No. 64/19 Page 259 of 402 State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 was constituted as partnership firm in the year 1999 vide Partnership Deed Ex.PW12/S on 02.04.1999 consisting of three partners, namely, Rajendra S. Raikwar, Mrs. Karishma S. Raikwar w/o Rajendra S. Raikwar and Mahan Mukherjee. The share of the partners in profits & losses were 25%, 25% and 50% respectively. In the said partnership deed Ex.PW12/S, there is no stipulation that day to day affairs of the firm shall be looked after by A2 Mahan Mukherjee or by Mrs. Karishma S. Raikwar.
315. The partnership was reconstituted vide Reconstitution Deed dated 14.06.2000 Ex. PW12/T by which Smt. Karishma S. Raikwar, wife of Rajendra S. Raikwar retired from the business of the partnership w.e.f. 14.06.2000 and Rajendra S. Raikwar and Mahan Mukherjee decided to continue the running business of partnership in the same name and style. Their share in the profits & losses was in equal ratio i.e. 50% each. The said Reconstitution Deed Ex.PW12/T also does not stipulate that A2 Mahan Mukherjee will only be the active partner or that only he will be looking after the day to day affairs of the firm or that Rajendra S. Raikwar shall be dormant partner without any responsibility of affairs of the firm.
316. A Supplementary Partnership Deed dated 28.12.2002 Ex.PW12/U CC No. 06/12 & ID No. 64/19 Page 260 of 402 State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 was executed between Rajendra S. Raikwar and Mahan Mukherjee by which it has been agreed between the partners that the operation of the partnership business accounts in the name of M/s Gaaman Global Exports shall be operated by either of the continuing partners instead of joint operation by the partners of their entire partnership account with Punjab National Bank, BO New Rohtak Road, New Delhi as stipulated in the Reconstitution Deed dated 14.06.2000 Ex.PW12/T. Otherwise, there was no other change in the rights and liabilities of the continuing partners and the said Supplementary Partnership Deed Ex.PW12/U was in continuation with the Reconstitution Partnership Deed dated 14.06.2000 Ex.PW12/T. Again, there is no such stipulation in the Supplementary Partnership Deed that day to day affairs of the firm shall be looked after by Mahan Mukherjee only and he will only be the active partner of the firm. Both A2 Mahan Mukherjee and A3 Rajendra S. Raikwar were sharing the profits & losses in equal ratio in the partnership business. Therefore, contention of A3 that he was not involved in day to day activities of the firm or that it was only A2 Mahan Mukherjee who was dealing with the affairs of the firm is liable to be rejected.
317. Further, there is a rent agreement dated 02.04.1999 Ex. PW12/V on record executed between one Sh. Anoop Kochar and M/s Gaaman Global CC No. 06/12 & ID No. 64/19 Page 261 of 402 State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 Exports by which premises mentioned in the agreement was let out by said Sh. Anoop Kumar to M/s Gaaman Global Exports. The said agreement was signed by Rajendra S. Raikwar on behalf of the firm being its partner. Thus, A3 Rajendra S. Raikwar had taken the premises on rent for M/s Gaaman Global Exports being one of its partners and hence it cannot be said that Rajendra S. Raikwar was not involved in the affairs of the firm.
318. In the present case, the involvement of A3 Rajendra S. Raikwar in the business of the firm is evident right from the beginning i.e. from opening of the account of the firm M/s Gaaman Global Exports with PNB, NRB, New Delhi. The Account Opening Form Ex.PW12/I was jointly signed by A3 Rajendra S. Raikwar and A2 Mahan Mukherjee. Further, all the loan documents executed between the bank and the borrower firm M/s Gaaman Global Exports pursuant to sanction of credit facilities and enhancement thereof viz. Agreement for loan/cash credit/overdraft, Hypothecation of goods and book of debts to secure cash credit facility, Agreements of guarantee, Undertakings have been jointly signed by A3 Rajendra S. Raikwar and A2 Mahan Mukherjee. A3 along with A2 has also made a confirmation vide Balance and Security Confirmation Letter dated 08.02.2003 Ex.PW12/SSS regarding correctness of balance of Rs.1,02,57,871.14/ as on 31.01.2003 owing from them as guarantors CC No. 06/12 & ID No. 64/19 Page 262 of 402 State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 in respect of loan account of M/s Gaaman Global Exports. A3 along with A2 has also undertaken not to siphon off the funds and to use the cash credit facilities granted by the bank for business of the firm vide Ex.PW41/J. The cheques of the firm have been jointly issued by A2 Mahan Mukherjee and A3 Rajendra S. Raikwar being partners in equal ratio to withdraw the amounts in self accounts as well as in favour of A1 Arvind Johri, CEO of the firm, M/s Swastik Exports and others. In these facts and circumstances, it does not lie in the mouth of A3 to contend that he was not an active partner in the firm and he only signed the documents as and when asked by A2 Mahan Mukherjee. A3 Rajendra S. Raikwar is not a layman or illiterate person rather as is borne out from the record that A3 Rajendra S. Raikwar is highly qualified and has done MBA. Therefore, it cannot be expected from him that he would blindly sign the documents without knowing the consequences of the same and it can be safely presumed that whatever documents he had signed, he signed the same after having understood the consequences of the same.
319. The contention of A3 that he was not involved in day to day affairs of firm and he only signed the documents at the behest of A2 Mahan Mukherjee cannot be accepted for one more reason. As noted hereinabove, vide Supplementary Partnership Deed dated 28.12.2002 Ex.PW12/U, the partners of CC No. 06/12 & ID No. 64/19 Page 263 of 402 State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 the firm Mahan Mukherjee and Rajendra S. Raikwar had agreed to operate the partnership business accounts by either of them and the other terms and conditions of the Reconstitution Deed dated 14.06.2000 Ex.PW12/T remained the same. However, despite the said agreement, A3 Rajendra S Raikwar remained active in conduct of the business of the firm M/s Gaaman Global Exports which is substantiated from the record. There is a cheque dated 08.02.2003 Ex.PW35/D2 on record for an amount of Rs.9,99,517/ issued in favour of "yourself" by M/s Gaaman Global Exports. The said cheque was signed by A3 Rajendra S Raikwar being partner of the firm. The statement of account of M/s Gaaman Global Exports Ex.PW32/E shows that a draft for the said amount was got prepared. Though there is nothing on record to show that for what specific purpose the said draft was got prepared by A3 Rajendra S. Raikwar. However, it shows that this draft must have been got prepared in favour of some supplier as has been the practice in the present case. There is another cheque dated 08.02.2003 Ex.PW35/D4 for an amount of Rs 1.5 lakhs issued in favour of "yourself", signed by Rajendra S Raikwar being partner of the firm. At the back of this cheque, there is an endorsement to make an FDR in the name of the firm. Thus, it all shows that A3 Rajendra S Raikwar was also issuing the cheques and that too of the substantial amount for getting some pay CC No. 06/12 & ID No. 64/19 Page 264 of 402 State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 order or demand draft or for releasing some LC in favour of the supplier independently on behalf of the firm.
320. There is another circumstance which suggests that A3 Rajendra S. Raikawar was actively involved in the partnership business. The file Ex.PW12/IIII (Colly) contains a letter dated 15.11.2003 written by Rajendra S. Raikwar as partner of the firm to Sr. Manager PNB New Rohtak Road and copy of which was also sent to SRM Delhi. The said letter was in continuation to the FAX sent to Sr. manager on 10.11.2003. It was stated in said letter that they had called at SRM, North Delhi with prior appointment on 14.11.2003 to discuss the issues involved in delay of shipment. It was stated that they have submitted draft LCs sent by their buyer M/s FDL Global Ltd., London and they would be able to meet their commitment within 23 weeks. It was informed that it was agreed upon between them and the SRM that there is no pressing need for the time being for verification of stocks lying at Gandhi Dham for shipment since cargo will be in transit from godown to port. It was also mentioned that other reasons for delay in shipment were also discussed in detail and SRM Delhi was kind enough to agree their request that if shipment is not done as above, bank will depute some officer from Gandhi Dham Branch for above purpose as sending of officer from Delhi will be time consuming and heavy drain on the CC No. 06/12 & ID No. 64/19 Page 265 of 402 State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 resources of the company.
321. There is further circumstance to show that A3 was also involved in the activities of the firm besides applying for credit facilities and executing the loan documents from time to time. When the account of M/s Gaaman Global Exports was running irregular and there was some issue regarding nonexistence of the firm M/s L.B. Enterprises, the alleged supplier at the given address, a meeting was arranged by K.B. Relan. The said meeting was also attended by A3 Rajendra S. Raikwar along with A2 Mahan Mukherjee on behalf of M/s Gaaman Global Exports which fact finds mentioned in letter dated 23.05.2003 Ex. PW31/D1 sent by A8 K.B. Relan to the Regional Office in which it was mentioned that the firm M/s L.B. Enterprises was not located and the partners of the firm had assured not to deal with the said firm in future and to sort out the issues. It was further mentioned in the said letter that both the partners of the said firm and CEO attended the meeting with A2 K.B. Relan. It all shows that A3 Rajendra S Raikwar was actively involved in the conduct of the business of the firm; and he has taken only a lame excuse that he was a dormant partner; and he did not know about the day to day conduct of the business of the firm; and he just signed loan applications, documents, cheques etc. at the behest of Mahan Mukherjee. He cannot be allowed to take such plea and cannot escape from the CC No. 06/12 & ID No. 64/19 Page 266 of 402 State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 criminal liability on this ground.
322. The next contention of Ld. Counsel for A3 is that PW7 Raja Ram Sharma who was star witness of the prosecution did not implicate A3 Rajendra S. Raikwar in any of the criminal activities done by the firm through A1 Arvind Johri and A2 Mahan Mukherjee and it shows that A3 Rajendra S. Raikwar is innocent and was not involved in any manner in the criminal activities done by another partner A2 Mahan Mukherjee.
323. I do not find any merit in this contention of Ld. Defence Counsel. Of course, PW7 Raja Ram Sharma when appeared in the witness box has not implicated Rajendra S. Raikwar in the wrong acts which as per him were done by A1 Arvind Johri and A2 Mahan Mukherjee including siphoning off the funds of the firm; and he also admitted in his crossexamination that after year 2001, accused Rajendra S. Raikwar used to remain in Bombay or Lucknow and it was accused Mahan Mukherjee who was looking after day to day affairs of the firm. But on the basis of these statements of PW7 Raja Ram Sharma, A3 Rajendra S. Raikwar cannot be given clean chit. PW7 Raja Ram Sharma was simply an employee in the firm M/s Gaaman Global Exports and has deposed the facts which were within his knowledge. He could not have deposed about the CC No. 06/12 & ID No. 64/19 Page 267 of 402 State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 internal functioning of the firm and the mutual arrangements made by the partners of the firm for siphoning off the funds and the division thereof. As noted earlier, A3 Rajendra S. Raikwar had equal share in profits & losses of the firm as that of Mahan Mukherjee and he was actively involved in the business of the firm, therefore he was equally responsible for the acts done by another partner Mahan Mukherjee in submitting the forged documents, producing the impersonators in the bank and siphoning off the funds in common intention with each other. The involvement of A3 Rajendra S. Raikwar, thus, in siphoning off the funds of the firm through Raja Ram Sharma cannot be ignored merely on the ground that Raja Ram Sharma did not specifically name him.
324. In so far as the contention of Ld. Defence Counsel that the bank witnesses did not identify A3 Rajendra S. Raikwar as the person who used to visit the bank on behalf of the firm is concerned, again the statement of bank witnesses will not help A3 to absolve from the criminal liability. It is a normal practice that when two people undertake to carry out a business in partnership, the same is done to pool their resources and to divide the responsibilities of the work. One partner may be looking after some area of the business and the other partner may be sharing some other responsibilities. To say that bank witnesses did not identify A3 Rajendra S. Raikwar and it shows that he was a dormant CC No. 06/12 & ID No. 64/19 Page 268 of 402 State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 partner and only accused Mahan Mukherjee was looking after the day to day work of the firm is fallacious. It is quite possible that A3 Rajendra S. Raikwar may not be visiting the bank quite often as compared to Mahan Mukherjee and for that reason the bank officials may not have identified him. But that will not be a ground to conclude that A3 did not know anything about the affairs of the firm and he just signed the documents as and when required by other partner Mahan Mukherjee. Even the record does not show that A3 was not at all visiting the bank. In this regard, statement of PW23 Sh. Ashok Ramchandani may be referred where he stated that he was not personally knowing the guarantors Ram Rakhi or Shanti Devi. The borrowers i.e. Mahan Mukherjee and Rajendra S. Raikwar as well as Branch incumbent K.B. Relan told him that the guarantors present on that day were Ram Rakhi and Shanti Devi. Although in the crossexamination he stated that the said fact is not mentioned in his statement to the CBI. But that will not make out a case of improvement as vehemently argued by Ld. Counsel for A3. The witness has explained that the CBI had not made the enquiry on the said fact and, therefore, he had not told the said fact to CBI. There does not seem to be an improvement. Rather it is only an elaboration of fact and every elaboration of fact cannot be said to be an improvement. The testimony of PW23 does not show that he is deliberately CC No. 06/12 & ID No. 64/19 Page 269 of 402 State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 implicating A3, rather it shows spontaneity of the narration of facts by the witness and if taken in the totality of the circumstances of the case, it cannot be said that the witness has implicated A3 at the behest of CBI. Therefore, his version that Ram Rakhi and Shanti Devi were identified at the instance of Rajendra S. Raikwar besides A2 Mahan Mukherjee & A8 K.B. Relan cannot be brushed aside. Though, he has stated that Mahan Mukherjee used to visit the bank more frequently whereas Rajendra S. Raikwar used to come rarely.
325. There is another aspect of the matter. It has come on record that A 3 Rajendra S. Raikwar and A2 Mahan Mukherjee were partners in the firm in equal ratio and had invested huge money in the business of M/s Gaaman Global Exports. It is not digestible that A3 would just blindly sign the cheques at the behest of A2 Mahan Mukherjee which were used for siphoning off the funds of the firm in favour of fake accounts of Raja Ram Sharma without asking the reasons for what purpose those cheques were being got signed from him.
326. It is also surprising to note that A3 Rajendra S. Raikwar has alleged that he was cheated by A1 Arvind Johri and A2 Mahan Mukherjee, but he has not initiated any action against them to recover the money of the firm which as per him were siphoned off by Arvind Johri and Mahan Mukherjee. Had CC No. 06/12 & ID No. 64/19 Page 270 of 402 State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 he been not involved in cheating the Bank by submitting forged documents and producing the impersonators and in siphoning off the funds of the firm and being cheated by A1 & A2, he would not have sit silent. No man of ordinary prudence will keep mum and stay indifferent if he has been cheated to the tune of crores of rupees besides dragged into criminal litigation for no fault.
327. The entire facts and circumstances of the case show that A3 Rajendra S. Raikwar was actively involved in the business of the firm and hence he cannot be allowed to raise a plea of his innocence on the ground that he just signed on the documents as and when asked by another partner A2 Mahan Mukherjee because he used to remain away in Mumbai and the affairs of the firm were being handled by A2 Mahan Mukherjee. Being equal partner in the partnership firm M/s Gaaman Global Exports, A3 Rajendra S. Raikwar was equally responsible for all the wrong activities done on behalf of the firm by another partner A2 Mahan Mukherjee which he very well knew or had every reason to be conversant with the same. The contention of A3 Rajendra S. Raikwar that he was not known to impersonators cannot be accepted for the similar reasons given qua A2 Mahan Mukherjee and the same are not being repeated here for the sake of brevity.
CC No. 06/12 & ID No. 64/19 Page 271 of 402
State vs. Arvind Johri. & Ors Judgment dt.18.10.2022
328. Ld. Counsel for A3 has relied upon "Bhiva Doulu Patil vs. State of Maharashtra", Criminal Appeal No. 174 of 1961, decided on 29.08.1962 on the point that rule of guidance as found in illustration B to Section 114 of the Indian evidence Act requires that the statement of accomplice should be corroborated and conviction should not be based on uncorroborated statement of accomplice. There is no dispute to the said proposition of law, however in the present case the statement of PW7 Raja Ram Sharma, the approver has been corroborated by other evidence on record.
329. Ld. Counsel for A3 has also relied upon the judgment titled as "Bodhraj @ Bodha & Ors. vs. State of Jammu & Kashmir", (2002) 8 SCC 45. In the said case, it was held as under: "It has been consistently laid down by this Court that where a case rests squarely on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person. The circumstances from which an inference as to the guilt of the accused is drawn have to be proved beyond reasonable doubt and have to shown to be closely connected with the principal fact sought to be inferred from those circumstances". CC No. 06/12 & ID No. 64/19 Page 272 of 402
State vs. Arvind Johri. & Ors Judgment dt.18.10.2022
330. However, in the present case, allegations against A3 are not based on the circumstantial evidence but there is plethora of evidence in the form of oral and documentary which incriminates A3 in commission of offence and hence this judgment is not applicable in the facts and circumstances of the present case.
331. In another judgment relied upon by Ld. Counsel for A3 in the case titled as "K.R. Purushothaman vs. State of Kerala", Criminal Appeal No. 495 of 2004 decided on 25.10.2005 by the Hon'ble Supreme Court, it was held that in the absence of some positive evidence indicating agreement to that effect conspiracy could not be inferred.
332. There is again no dispute to the proposition of law laid down in the aforesaid judgment. In the present case, however, there is sufficient evidence to prove the guilt of A3 beyond reasonable doubt that he was in criminal conspiracy with other partner of the firm A2 in commission of the crime i.e in cheating the bank by obtaining the loan and credit facilities at the strength of forged documents which he knew or had reasons to believe to be forged documents. Hence, this judgment as well is of no help to A3 Rajendra S. Raikwar.
CC No. 06/12 & ID No. 64/19 Page 273 of 402
State vs. Arvind Johri. & Ors Judgment dt.18.10.2022
333. In summing up, the prosecution has successfully proved on record beyond reasonable doubt that partners of M/s Gaaman Global Exports, namely, A2 Mahan Mukherjee & A3 Rajendra S. Raikwar cheated the PNB, NRB by inducing it to grant various credit facilities by submitting the forged documents which they knew to be forged documents or had reasons to believe it to be forged. Hence, both A2 Mahan Mukherjee and A3 Rajendra S. Raikwar are found guilty of the offences punishable under Section 420 & 471 IPC. FINDINGS QUA A8 K.B. RELAN SANCTION U/S 19 (1) OF THE PC ACT, 1988
334. Since A8 K.B. Relan was the public servant at the time of filing the chargesheet, the sanction for his prosecution under Section 19 of the PC Act, 1988 has been obtained by the prosecution. The Ld. Counsel for A8 has assailed the grant of sanction so obtained by the prosecution. Therefore, I shall take up this issue first.
335. The contention of Ld. Counsel for A8 on the grant of sanction is three fold. Firstly, that the sanction has been obtained only under Section 19 of PC Act, 1988, but there is no sanction under Section 197 of Cr.P.C for prosecution of A8 for penal offences as the charge of criminal conspiracy under CC No. 06/12 & ID No. 64/19 Page 274 of 402 State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 the IPC has also been leveled against A8 K.B. Relan along with the charge under Section 13 (1)(2) r/w 13 (1) (d) of PC Act, 1988. Secondly, PW4 Sh. Ved Vyas who had granted the sanction for prosecution of A8 K.B. Relan was not a dispassionate person as he had succeeded PW42 Sh. V.K. Sharma as Deputy General Manager in Regional Office of PNB. He has dealt with the case file of loan of the firm M/s Gaaman Global Exports, therefore he was not a disinterested person and grant of sanction for prosecution of A8 K.B. Relan by PW4 Sh. Ved Vyas is in violation of principles of natural justice. Thirdly, the prosecution has not placed the entire material before PW4 Sh. Ved Vyas as the panel advocate reports in respect of authenticity of the title documents and the valuer reports in respect of mortgaged properties were not sent to him as the same were not filed along with the chargesheet and the prosecution has placed those records at the time of examination of PW12 Sh.R.M. Sachdeva. Hence, the sanctioning authority did not have the complete records before him and had these reports been sent to him, he would not have accorded sanction for prosecution of A8 K.B. Relan as it would have disclosed that K.B. Relan had relied upon the panel advocate reports as well as valuation reports.
336. On the contrary, Ld. Prosecutor submitted that no separate sanction under Section 197 Cr.P.C was required to be taken for prosecution of A8 K.B. CC No. 06/12 & ID No. 64/19 Page 275 of 402 State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 Relan for penal offences. He further submitted that the sanctioning authority has applied his mind and granted sanction on the basis of material which was adequate. He further submitted that PW4 Sh. Ved Vyas had not sanctioned any loan or enhancement in the account of the firm M/s Gaaman Global Exports, therefore there was no violation of principles of natural justice.
337. Admittedly, PW4 Sh. Ved Vyas has accorded the sanction for prosecution for A8 K.B. Relan in the present case. His testimony is required to be discussed here to find out whether the sanction granted by him is valid or not. He deposed that in June 2007, he was posted as Deputy General Manager, Punjab National Bank, South Delhi Zone at Atma Ram House, Tolstoy Marg, New Delhi. He had granted sanction for prosecution against accused K.B. Relan vide sanction order dated 04.06.2007 Ex.PW4/A bearing his signature at point A and initials at points A1 and A2. He further deposed that being disciplinary authority, he was competent to grant sanction for prosecution.
338. In his crossexamination by Ld. Counsel for A8, he stated that he had called the relevant files at the time of grant of sanction. He further stated that when the file for grant of prosecution sanction was received by him, he did not inform the Head Office that he had dealt with this matter or that prosecution sanction should not be sought from him. He volunteered that it was not relevant. CC No. 06/12 & ID No. 64/19 Page 276 of 402
State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 He categorically stated that being the disciplinary authority, he granted sanction for prosecution as he had not sanctioned any facility in this case. He did not remember whether at the relevant time he was the only disciplinary authority in respect of accused K.B. Relan or other DGMs were also his disciplinary authorities. He denied the suggestion that all the DGMs in the Regional Officer were the disciplinary authorities. He volunteered that this case was with him and he was appointed disciplinary authority in respect of accused K.B. Relan. He again said that at the relevant time he was DGM in the zonal office. He was made disciplinary authority in the departmental authority against accused K.B. Relan. He was put a question as to whether all the DGMs in the Zonal Office were competent to grant sanction for prosecution against K.B Relan to which he replied that as a procedure such cases are put up to the concerned disciplinary authority. He denied the suggestion that since he granted various facilities in the present account, he had granted sanction for prosecution at the behest of CBI on the draft sanction order. He volunteered that sanction granted by him was purely on the facts put up to him.
339. The aforesaid testimony of PW4 Sh. Ved Vyas and the other evidence on record would show that all the sanctions of cash credit and other facilities were granted in the loan account of M/s Gaaman Global Exports by CC No. 06/12 & ID No. 64/19 Page 277 of 402 State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 PW42 Sh V.K. Sharma, Sr. Regional Manager. It is also apparent that at no point of time, PW4 Sh. Ved Vyas accorded any sanction in respect of the account of the firm. Of course, PW4 had dealt with the file of M/s Gaaman Global Exports but at a very late stage i.e. in the month of October 2003 when he joined Regional Office as Deputy General Manager. By that time, the account of firm had gone very irregular after availing all the credit facilities and the bank was trying to get the loan account on track by making all the efforts. At that point of time, PW4 Sh. Ved Vyas had sanctioned the proposal made by A10 Anil Agarwal, Sr. Manager (Credit) and PW31 Sh. Vinay Kapoor, Chief Manager for accepting the Branch Manager's recommendations for operation of account with a clause of 40% sales tagging so that the account can be regularized by October 2003 keeping in view the irregularities and stake of the bank. PW4 Sh. Ved Vyas vide his observations dated 07.10.2003 had approved the said recommendations vide Ex. PW31/ZZ. PW4 Sh. Ved Vyas has taken the said action to secure the bank's interest when the account of the firm was going in the direction of being declared as NPA. Except this, there is nothing on record that PW4 Sh. Ved Vyas has dealt with the account of the firm. Therefore, it cannot be said that PW4 Sh. Ved Vyas was involved in grant of sanctions of the credit facilities at the level of Regional office, he was not a CC No. 06/12 & ID No. 64/19 Page 278 of 402 State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 dispassionate person and was not competent to grant the sanction. The testimony of PW4 Sh. Ved Vyas does not show that he was an interested person and biased to grant sanction of prosecution of A8 K.B. Relan.
340. So far as the second limb of argument of Ld. Defence counsel that no sanction under Section 197 Cr.P.C. for penal offences has been taken by the prosecution is concerned, the Hon'ble Allahabad High Court in its judgment in case titled as "Neera Yadav v. CBI", Crl. Petition No. 2282/04 passed on 25.01.2006, while dealing with the issue as to whether sanction for prosecution was also required to be taken u/s 197 Cr.P.C even if there was sanction u/s 19 of PC Act has observed that, "Once the prosecution has obtained the sanction under Section 19 (1) (c) of the PC Act, 1988, then the prosecution was not required to seek separate sanction under section 197 Cr.P.C". The Court negatived the contention of the accused in those cases that the sanction both under section 197 Cr.P.C. as well as under Section 19 of the PC Act, 1988 for prosecuting them under section 13 of PC Act was required and a reference was made to the decision of the Hon'ble Supreme Court in Hari Har Prasad vs. State of Bihar. 1972 (3) SCC 89.
341. In view of the proposition laid down in the aforesaid judgment, CC No. 06/12 & ID No. 64/19 Page 279 of 402 State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 since the sanction for prosecution of A8 K.B. Relan was taken under Section 19 of the PC Act,1988 by the prosecution, separate sanction for the penal offences was not required to be taken under Section 197 Cr.P.C.
342. The last contention of Ld. Counsel for A8 that entire material was not put up by the prosecuting agency, therefore the sanction has been vitiated. This argument is based on the premise that the legal search reports and valuation reports were not filed along with the chargesheet and same were produced on record during the examination of PW12 Sh. R.M. Sachdeva. There is no dispute that these reports were not sent to PW4 Sh. Ved Vyas as also admitted by him during his cross examination. But question which arises here is as to whether in the absence of those reports, the sanction has been vitiated and if these reports had been produced before the sanctioning authority, he would not have granted the sanction ?
343. In my considered opinion, no prejudice has been caused to the accused and sanction is not vitiated only because reports of panel advocate and valuer were not sent to the sanctioning authority. PW4 Sh. Ved. Vyas has granted the sanction on the basis of original records and on the substantive documents. There were allegations against A8 K.B. Relan who was the Sr. Manager at branch that there has been irregularities in processing of loan, taking CC No. 06/12 & ID No. 64/19 Page 280 of 402 State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 identification of guarantors, in obtaining the identity proof of the guarantors which facilitated the borrowers to produce the fake guarantors and forged title documents of the mortgaged properties and same was in collusion with the borrowers. There were allegations that post sanction also, A8 K.B. Relan in conspiracy with borrowers allowed huge cash withdrawals, granted overdrawing beyond his powers and failed to ensure the end use of the funds. Therefore, the sanctioning authority was not misled in grant of sanction as there were several allegations against Branch Manager K.B. Relan in pre sanction and post sanction of loan facilities. The sanctioning authority does not make his conclusion on the basis of report of others and the panel advocate's report was only his opinion but the sanctioning authority has based his conclusions in granting sanction on the basis of substantive documents and material produced before him and not on the basis of conclusion or the report of others.
344. Furthermore, following principles have been culled out while dealing with issue of sanction by the Hon'ble Supreme Court in State of Maharashtra through CBI vs. Mahesh G Jain, Crl. Appeal No. 2345 of 2009 that :
a) It is incumbent on the prosecution to prove that the valid sanction has been granted by the sanctioning authority after being CC No. 06/12 & ID No. 64/19 Page 281 of 402 State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 satisfied that a case for sanction has been made out.
b) The sanction order may expressly show that the sanctioning authority has perused the material placed before him and, after consideration of the circumstances, has granted sanction for prosecution.
c) The prosecution may prove by adducing the evidence that the material was placed before the sanctioning authority and his satisfaction was arrived at upon perusal of the material placed before him.
d) Grant of sanction is only an administrative function and the sanctioning authority is required to prima facie reach the satisfaction that relevant facts would constitute the offence.
e) The adequacy of material placed before the sanctioning authority cannot be gone into by the court as it does not sit in appeal over the sanction order.
f) If the sanctioning authority has perused all the materials placed before him and some of them have not been proved that would not vitiate the order of sanction.
g) The order of sanction is a prerequisite as it is intended to provide a safeguard to public servant against frivolous and vexatious litigants, but simultaneously an order of sanction should not be construed in a pedantic manner and there should not be a hypertechnical approach to test its validity.
345. In view of the above discussions, it is held that there was abundant CC No. 06/12 & ID No. 64/19 Page 282 of 402 State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 material before the sanctioning authority and sanction order was not vitiated in any manner.
346. Now, coming to the allegations levelled against A8 K. B. Relan in the chargesheet. The allegations against A8 K.B. Relan can be split in two parts i.e. pre sanction of loan and post sanction of loan. PRE SANCTION OF CREDIT FACILITIES A. INTRODUCTION OF ACCOUNT OF M/S GAAMAN GLOBAL EXPORTS IN CONSPIRACY WITH THE PARTNERS OF THE FIRM
347. As per prosecution, A8 K.B. Relan in conspiracy with the partners of the firm M/s Gaaman Global Exports introduced the account of the firm.
348. As it has been proved that firm M/s Gaaman Global Exports through its partners got opened a current account in the Punjab National Bank, New Rohtak Road Branch, New Delhi vide Account Opening Form Ex.PW12/I. A8 K.B. Relan was the Branch Manager at that time. He had verified the address of the partners of the firm as per noting on the top of the Account Opening Form Ex.PW12/I. As per Circular No. 11/2001 dated 07.07.2001 Mark PW47/D1 (Colly) of Punjab National Bank, wherein it is mentioned under the heading "Reg: Opening of New Accounts" in para no. 2 that introduction from an CC No. 06/12 & ID No. 64/19 Page 283 of 402 State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 existing account holder is to be obtained, if a prospective account holder is not in a position to offer introduction of an existing account holder/respectable member of local community known to the Bank, Passport, Postal identification, Pay books, identification cards of armed forces, Police and Government may be accepted for the purpose of introduction in all deposit accounts.
349. Accordingly, copy of passport of A3 Rajendra S. Raikwar, partner of the firm M/s Gaaman Global Exports Ex.PW12/W was enclosed with the Account Opening Form. Copy of passport of A2 Mahan Mukherjee is also on record. Therefore, identity and address of the partners of the firm was not in question. It is a matter of record that partners of the firm have been appearing in the present case and are facing trial. Therefore, it cannot be said that by verifying the address of the firm on the Account Opening Form Ex.PW12/I, A8 K.B. Relan gave any favour to the partners of the firm or that verification was done in conspiracy with the partners of the firm. It cannot be lost sight that banking is a business and the Branch Manager has to open the new accounts for expansion of the business of the Bank. Therefore, even if the Branch Manager has introduced the account of the borrower firm, it will not ipso facto amount to conspiracy. Even otherwise, A8 K.B. Relan had not introduced the account, but had only verified the address of the firm.
CC No. 06/12 & ID No. 64/19 Page 284 of 402
State vs. Arvind Johri. & Ors Judgment dt.18.10.2022
B. ILLEGAlL IDENTIFICATION OF IMPERSONATORS AS
PROPERTY OWNERS/GUARANTORS
350. As it stands proved that four properties are involved in the present matter and title documents of the said mortgaged properties were found to be forged as well as the guarantors produced in the bank were the fake persons, question now arises as to whether A8 K.B. Relan being the Branch Manager facilitated the borrowers in submitting the forged title documents of the mortgaged properties by not verifying the title documents properly as per the banking procedure; and also facilitated the impersonators/fake persons to stand guarantors for the borrower firm by not taking their proper identification proof in conspiracy with the partners of the firm as alleged by the prosecution ?
351. As per bank circular Ex.PW47/DAX1 (Colly) issued by PNB, Branches should get all the documents within limits of Rs. 25 lakhs and above vetted from the local approved advocate first before their execution and again after execution but before disbursement of the loans. Similar condition is find mentioned in the bank circular No. 85 dated 17.09.2002 Ex.PW42/D3. Likewise, Ex.PW37/D2, which is a book of instructions on loan issued by PNB, Head Office, New Delhi under the head "Creation of Equitable Mortgage", it provides that before accepting the deposit of title deeds accompanied by a CC No. 06/12 & ID No. 64/19 Page 285 of 402 State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 registered memorandum of deposit, it should be ensured that: the relative title deeds have been examined by the bank's advocate and search has been made for encumbrances. Similarly, when an equitable mortgage by simple deposit of title deeds is accepted, undernoted procedure must be strictly followed : "The title deeds having been examined by the Bank's Advocate and the search having been made for the encumbrances, all persons interested in the property as owners must attend to make the deposit in the presence of two employees of the Bank".
352. The bank witnesses examined by the prosecution have also admitted the procedure to be followed by the Branch before disbursal of loan in case the loan is secured by way of collateral security of mortgage of an immovable property.
353. PW4 Sh. Ved Vyas, the then Deputy General Manager, Punjab National Bank, South Delhi Zone has admitted in his crossexamination by A8 K.B. Relan that nonencumbrance certificate is required before mortgage of property for the purpose of loan. The said certificate is to be given by an advocate on the panel of the bank.
354. PW12 Sh. R.M. Sachdeva in his crossexamination by A10 Anil Aggarwal has stated that initially the Branch Manager checks whether the chain CC No. 06/12 & ID No. 64/19 Page 286 of 402 State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 of documents of the property offered as collateral security is complete or not. Then the documents are handed over to the advocate on the panel of the bank who makes a search to verify whether there is any encumbrance on the said property and he also checks the genuineness of the property. The Advocate also verifies the property physically. He further stated during his crossexamination by A8 K.B. Relan that before disbursal of the loan, bank officer is required to visit the property. He admitted that a title deed register is maintained in the bank and the entries made in the title register are witnessed by the bank officer.
355. Similarly, PW22 Sh. Ramesh Kalia who was Loan Officer during the relevant time in New Rohtak Road Branch of Punjab National Bank has stated during his crossexamination by Ld. Counsel for A8 that whenever any loan application offering collateral security is received by the bank, they obtain nonencumbrance certificate from bank's approved Advocate. On receipt of the same, valuation of the property is obtained. If the bank's approved Advocate advise that any document in the chain of title of the property is required, the same is also obtained. After receipt of complete chain of title documents and nonencumbrance certificate being in order, entry is made in the title deed register.
356. PW37 Sh. S.S. Chhabra, the then Manager at the Regional Office CC No. 06/12 & ID No. 64/19 Page 287 of 402 State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 in his crossexamination by A10 has stated that if any collateral security is taken by the bank, its mortgage is done in the Branch. The Branch Manager obtains Non Encumbrance Certificate from the Advocate on the panel of the Bank, checks that the complete chain of documents of the property is complete and enters the same in the Title Deed Register maintained in the Branch.
357. PW42 Sh. V.K. Sharma, Senior Regional Manager during his crossexamination by Ld. Counsel for A8 has stated that for taking a collateral security, a confidential report of the party is prepared by the Branch, which is signed by the Branch Manager or Second Incharge or the Officer who has investigated the property on ground. The relevant documents about the party and the property are seen. A search report is taken from an Advocate on the panel of the bank about the genuineness of the property and nonencumbrance. Valuation report is also taken from a competent valuer. He was put a question whether is it correct that for taking any property on mortgage, as per Bank's procedure and practice, the verification of the property is done by obtaining search report from the advocate, getting the documents vetted from the Advocate, visit of the property by the Bank officials, seeking identity proof i.e. Ration card etc., from the owner of the property and if the aforesaid are complied with, it is satisfactory for the Branch officials to accept the mortgage of the property to CC No. 06/12 & ID No. 64/19 Page 288 of 402 State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 which he replied in affirmative. He also stated that apart from above documents, an independent enquiry from the residence of the local area where the borrower or guarantor is residing is also made as per bank rules.
358. PW46 Sh. B.S. Bisht, the IO of the case in his crossexamination by A8 K.B. Relan has admitted that property documents are verified by a lawyer who is on the panel of the bank. He further admitted that a valuation report from the approved valuer is obtained by the bank prior to sanction of loan.
359. PW47 Sh. Satendra Singh, the second Investigating Officer of the case has also stated during his crossexamination by A8 K.B. Relan that he is aware that the Panel Advocate gives his search report after verifying the details of the property from the SubRegistrar office.
360. As such, it is clear that as per banking practice and procedure, if an immovable property is taken as collateral security by the bank against a loan, the Branch Manager before releasing the loan and execution of loan documents is obliged to get the property documents vetted and to obtain nonencumbrance certificate from an advocate on the panel of the bank in respect of the said property who shall verify the title documents of the property after inspecting the records from Sub Registrar Office and valuation report from the government CC No. 06/12 & ID No. 64/19 Page 289 of 402 State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 approved valuer who shall furnish his report after physically visiting the property. The spot verification by the bank officer is also required to be done. Now, it is to be seen as to whether A8 K.B. Relan being the Branch Manager had followed the said procedure while dealing with the loan proposals made by firm M/s Gaaman Global Exports, which were collaterally secured by way of equitable mortgage of four properties.
361. PW12 Sh. R.M. Sachdeva in his crossexamination by A10 Anil Aggarwal has admitted that the loan documents are vetted by the Advocates on the panel of the Bank. He further deposed that in this case also, the documents were got vetted. At that time, no defect was pointed out by the advocate from the panel of the bank.
362. He admitted that the officers posted at Branch had conducted spot verification of the properties offered as collateral securities. He does not remember whether they had submitted reports in all the cases in the proper proforma but in two cases reports were submitted i.e. with regard to property belonging to Smt. Shanti Devi and property belonging to Sh. Anil Kumar Jaggi.
363. The witness further admitted during his crossexamination by Ld. Counsel for A8 that in all the properties which were mortgaged, search reports were obtained from the advocates on the panel of the bank. He further admitted CC No. 06/12 & ID No. 64/19 Page 290 of 402 State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 that thereafter valuation reports were also obtained from the approved valuers who gave the reports after visiting the properties. He stated that before disbursal of the loan, bank officer is required to visit the property. In respect of all the four properties in this case, the bank officers had visited the properties and given spot verification reports. He admitted that one of the reports has been given by Sh. Bansal, Manager (Loans) which was contained in the appraisal note prepared by him. The bank officers were supposed to meet the owners of the four properties. He admitted that the owners of the properties, whose photographs are available on the loan documents, came to the bank and signed the loan documents.
364. PW47 Sh.Satendra Singh, the IO of the case also during his cross examination by A8 K.B. Relan has admitted that in this case, the search report of the Panel Advocate was obtained with regard to all four properties mortgaged to the bank. He further admitted that reports of bank panel advocates and that of bank approved valuers were on record showing that they had visited the properties mortgaged to the bank prior to sanction of loan or their enhancements. He further admitted that the advocates in their reports had shown that they had visited the office of concerned SubRegistrar.
365. Thus, from the aforesaid testimonies of prosecution witnesses, it stands proved that legal search reports from the panel advocate and valuation CC No. 06/12 & ID No. 64/19 Page 291 of 402 State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 reports from the government approved valuer in respect of all four mortgaged properties were taken by A8 K.B. Relan, the Branch Manager.
366. It has already come on record that at the time of submission of loan application dated 09.08.2001 Ex.PW12/M for grant of CC (H) limit of Rs. 20 lakhs, the partners of the firm had offered hypothecation of stock of rice as primary security and mortgage of property bearing No. A208, Old Gupta Colony, Vijay Nagar, Delhi registered in the name of Smt. Ram Rakhi as collateral security. The said loan proposal was processed by Sh.R.P. Bansal, the then Loan Incharge and sanctioned by A8 K.B. Relan, the then Branch Manager on 07.09.2001. The title document i.e. the Sale Deed Ex.PW5/B of the said property submitted by the borrower firm was later on found to be forged and the guarantor Smt. Ram Rakhi was found to be dead in the year 1990. The guarantee documents were found to have been executed by some other lady impersonating as "Ram Rakhi". The prosecution, thus, has alleged that A8 K.B. Relan did not take proper identification proof of the purported guarantor in conspiracy with the partners of the firm in order to facilitate the purported guarantor to impersonate Smt. Ram Rakhi.
367. Before the said loan proposal was processed and sanctioned by A8 K.B. Relan on 07.09.2001, nonencumbrance certificate in respect of CC No. 06/12 & ID No. 64/19 Page 292 of 402 State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 aforesaid property of Smt. Ram Rakhi was obtained from Sh. K.K. Sharma, Advocate who was on the panel of the Bank. It is not in dispute that Sh. K.K. Sharma was on the panel of the bank as also admitted by PW12 Sh. R.M. Sachdeva during his crossexamination by Ld. Counsel for A8. Ex.PW12/BB is the legal search report dated 14.07.2001 in respect of property bearing No. A208, Old Gupta Colony, Vijay Nagar, Delhi prepared by Sh. K.K. Sharma, Advocate. In the said report, Sh. K.K. Sharma, Advocate has stated that he had gone to the Office of Sub RegistrarI, Delhi and inspected the records belonging to the aforesaid property after paying necessary charges of inspection of Registration Records, and on the basis of searches carried out from the records, he found the property in question stands in the name of Smt.Ram Rakhi and he did not come across any kind of recording/entry of registered sale, transfer, mortgage, gift, lien etc. and as such property of Smt.Ram Rakhi can be termed as free from all sorts of encumbrances.
368. Not only this, he had also physically inspected the property of Smt. Ram Rakhi where it has been narrated by Smt. Ram Rakhi that rent is being collected by her till date and that she is the absolute owner of the property in question. On the basis of the same, he opined that Smt. Ram Rakhi being the owner of the property in question, her title qua the property being clear and of CC No. 06/12 & ID No. 64/19 Page 293 of 402 State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 marketable nature, she can create equitable mortgage by deposit of original title deeds with respect to any financial assistance, provided by the branch either in the name of Smt. Ram Rakhi or in the name of any other person. Along with the said report, he, inter alia, annexed original inspection charge receipts and photocopy of site plan showing existing structure of the property. The said report Ex. PW12/BB and the photocopy of the site plan is also countersigned by A2 Mahan Mukherjee and also bears the stamp of the firm M/s Gaaman Global Exports.
369. The valuation report in respect of aforementioned property from the government approved valuer was also obtained by A8 K.B. Relan before processing the loan proposal. Sh. V.D. Gandotra, the approved valuer vide his report Ex.PW12/CC gave valuation of the said property and he assessed the market value of the property as on 14.07.2001 at Rs. 50 lakhs. The valuation report is also countersigned by Mahan Mukherjee and also bears stamp of the firm.
370. Before sanction of the loan, spot verification of the property was also carried out by the bank official. PW44 Sh. R.P. Bansal, who was posted as Manager in New Rohtak Road Branch of PNB during the relevant time, had visited the aforesaid property of Smt. Ram Rakhi on 05.09.2001 as deposed by CC No. 06/12 & ID No. 64/19 Page 294 of 402 State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 him. He prepared the process note dated 06.09.2001 Ex.PW12/N with regard to proposal of M/s Gaaman Global Exports for grant of CC (H) limit of Rs. 20 lakhs after physically visiting the property. In the said process note, he has mentioned that party i.e. M/s Gaaman Global Exports had offered collateral security of IP of Smt. Ram Rakhi bearing No. M97, Gupta Colony (218), Delhi 9; he visited the property on 05.09.2001; Smt. Ram Rakhi is 74 years old and she has given written affidavit cum declaration dated 10.08.2001 duly notarized stating at Item No. 7 that she has hold over her IP and her son(s) has no right, title or interest till she is alive and she offered her IP as collateral security in favour of above party. He further mentioned that though Smt. Ram Rakhi is 74 years old (slightly in advance age) but her statements are clear. He categorically stated in his process note that, "We may accept her request for EM of her IP".
371. In his crossexamination by Ld. Counsel for A8, PW44 R.P. Bansal has admitted that when the loan proposal was processed, the non encumbrance and verification report of the Bank approved advocate was available. He further admitted that when he went for the spot inspection, the lady who met him there was the same lady who had signed on the guarantee documents.
CC No. 06/12 & ID No. 64/19 Page 295 of 402
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372. Along with the guarantee documents, the photocopy of ration card of Smt. Ram Rakhi was also submitted as her address proof. The same is Ex.PW5/D and already stands proved to be a forged document. The photograph appearing on Ex.PW5/D is not of Smt.Ram Rakhi. It has also been found proved that the Indemnity bond Ex.PW5/C was executed by impersonator as Smt. Ram Rakhi and it bears the same photograph which was also appearing on the photocopy of ration card Ex.PW5/D purported to be of Smt. Ram Rakhi. Furthermore, as per PW44 Sh. R.P. Bansal, the lady whom he had met at the time of spot verification was the same lady who had signed on the guarantee documents.
373. In these circumstances, when before sanction of the loan by A8 K.B. Relan, there was panel advocate report who found the property to be mortgageable after inspecting the records from the Office of Sub Registrar and claimed to have met Smt. Ram Rakhi; there was valuation report of the government approved valuer who gave the market value of the property at that time and also prepared the site plan showing structure of the property; there was spot inspection report of bank official Sh. R.P. Bansal who physically visited the property and also claimed to have met Smt. Ram Rakhi personally, meaning thereby they all had access to the property coupled with the fact that CC No. 06/12 & ID No. 64/19 Page 296 of 402 State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 photographs on Indemnity Bond Ex.PW5/C and ration card Ex. PW5/D are of same lady whom the bank official Sh.R.P. Bansal met at the time of spot verification, there was no circumstance for A8 K.B. Relan, the then Branch Incharge to raise any suspicion on the identity of purported guarantor who impersonated herself as "Ram Rakhi".
374. Similarly, when the cash credit limit was sought to be enhanced by the firm from Rs. 20 lakhs to Rs. 100 lakhs, which was sanctioned for Rs.65 lakhs by the Senior Regional Manager on 07.03.2002, the property bearing No. N154, Greater Kailash, PartI, New Delhi registered in the name of Smt. Shanti Devi was submitted as collateral security in addition to the aforesaid property of Smt. Ram Rakhi. The title documents of the said property were also turned out to be forged and guarantor who executed the guarantee documents was impersonator i.e. A7 Seema Nagpal.
375. At that time also, before sending the loan proposal to the Regional Office for sanction on 18.01.2002, A8 K.B. Relan, the Branch Manager had obtained report of panel advocate Sh. K.K. Sharma dated 07.01.2002 Ex.PW12/BBB. In the said report, Sh. K. K. Sharma, Advocate has stated that he had gone to the Office of Sub RegistrarIII, Asaf Ali Raod, New Delhi and inspected the records belonging to the aforesaid property No. N154, Greater CC No. 06/12 & ID No. 64/19 Page 297 of 402 State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 Kailash, PartI, New Delhi and he did not come across any kind of entry of registered sale, transfer, mortgage, gift, lien, charge etc. recorded with respect to the said property presently owned by Smt. Shanti Devi and opined that the property is free from all sorts of encumbrances and title of the property vests with Smt. Shanti Devi and the same is clear and marketable.
376. He also categorically mentioned in his report that, "I have, besides giving a thoughtful consideration and searching of the relevant records from the authorities concerned, physically visited the property in question on 06.01.2002, and Smt. Shanti Devi is residing and use and occupation of the said property and the property in question is situated in one of the prestigious colonies of New Delhi and is believed to have a good marketable title." The said report was accompanied with the site plan of the said property showing construction of the house.
377. Valuation report was also obtained and Sh. V.D. Gandotra, the government approved valuer vide his report dated 07.01.2002 Ex.PW12/CCC assessed the market value of the property at Rs. 1,25,77,000/. As per record, A8 K.B. Relan himself had visited the said property and made spot verification report which fact is not in dispute.
378. The Relinquishment Deed dated 19.06.2001 Ex.PW2/B was also CC No. 06/12 & ID No. 64/19 Page 298 of 402 State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 submitted with the guarantee documents by the borrower firm. The said Relinquishment Deed bore the photograph purported to be of Smt. Shanti Devi, which in fact was of A7 Seema Nagpal (since deceased). The said Relinquishment Deed was shown to have been duly registered by the Sub Registrar.
379. As such, when Sh. K.K. Sharma, Advocate vide legal search report Ex.PW12/BBB had certified that the property is unencumbered, marketable and genuine after inspecting the records from the Sub Registrar Office and also claimed to have met owner Smt. Shanti Devi personally; Sh. V.D. Gondotra, the approved valuer also gave valuation of the property after physically visiting the property vide valuation report Ex.PW12/CCC and further the photograph of impersonator A7 Seema Nagpal is found affixed on the registered Relinquishment Deed Ex.PW2/B who was also found present in the property at the time of visit of panel advocate, approved valuer and A8 K.B. Relan and also had been appearing in the bank impersonating herself as "Shanti Devi", A8 K.B. Relan had no reasons to doubt the identity of purported guarantor A7 Seema Nagpal.
380. Again when the firm submitted another proposal dated 29.07.2002 Ex.PW32/C for enhancement of cash credit facility to Rs. 150 lakhs, which was CC No. 06/12 & ID No. 64/19 Page 299 of 402 State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 sanctioned by PW42 Sh. V.K. Sharma, the then Regional Manager for Rs.125 lakhs on 03.02.2003, the existing properties of Smt. Ram Rakhi and Smt. Shanti Devi were sought to be substituted by a single property bearing No. B65, Paschimi Marg, Vasant Vihar, New Delhi owned by Ms. Stella A. Biswas. The title documents of the said property were also found to be forged and Ms. Stella A. Biswas was impersonated in the bank.
381. At this stage also, the Branch office before sending the proposal to Regional Office for sanction had obtained legal search report of panel advocate Sh. K.K. Sharma. The legal search report dated 21.10.2002 is Ex.PW12/MMMM. In the said report, Sh. K.K. Sharma, Advocate stated that he had gone to the Office of Sub RegistrarIII and inspected the relevant records belonging to the aforesaid property No. B65, Paschimi Marg, Vasant Vihar, New Delhi and he did not come across any kind of entry of registered sale, transfer, mortgage, gift, lien, charge etc. recorded with respect to the said property presently of Ms. Stella A. Biswas and opined that the property is free from all sorts of encumbrance. Sublease rights qua the land with respect to the said property vests with Ms. Stella A. Biswas and her property is enforceable and readily saleable.
382. He had also physically visited the property in question on CC No. 06/12 & ID No. 64/19 Page 300 of 402 State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 18.10.2002 and it was transpired to him that Ms. Stella A. Biswas was found to be in physical possession of the third floor Front portion being used by her for the purpose of her residence.
383. Sh. V.D. Gandotra, the approved valuer had also given valuation report dated 14.10.2002 Ex.PW12/NNNN certifying the market value of the property to be Rs.5,75,24,000/. The valuation report is accompanied with site plan of the said property.
384. Though the prosecution has alleged that the identity of the guarantor was not ensured by K.B. Relan but it may be noted here that along with the guarantee documents, partners of the firm had also submitted the photocopy of the ration card purported to be of Ms. Stella A. Biswas which is Ex. PW12/VVVV. The same was duly attested by A2 Mahan Mukherjee certifying it to be copy of original. Therefore, it cannot be said that A8 K.B. Relan had failed to obtain any identity proof of the impersonator and facilitated her to impersonate as " Stella A. Biswas". On receipt of reports of panel advocate and government approved valuer, he was left with no doubt and satisfied with the genuineness of identity of the owner and title documents of the property and sent the proposal to Regional Office recommending the enhancement of limit.
CC No. 06/12 & ID No. 64/19 Page 301 of 402
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385. Similarly, when the borrower firm submitted request for grant of packing credit limit for 1,25,00,000/ vide application dated 13.02.2003 Ex.PW12/DDDDD (Colly), another property bearing No. A284, New Friends Colony, New Delhi belonging to Sh. Anil Kumar Jaggi was offered as collateral security in addition to the existing properties. Along with the said application, the borrower firm submitted the forged title documents of the property which included Conveyance Deed Ex. PW1/G having photograph of A11 Surender Kapoor (since deceased) who allegedly impersonated Anil Kumar Jaggi in the bank and executed the guarantee documents.
386. Bogus NOC purported to have been issued by LIC in respect of property No. B65, Paschimi Marg, Vasant Vihar, New Delhi were also submitted on the basis of which DDA granted permission to mortgage the property.
387. Perusal of record reveals that the Branch Manager had sought permission from DDA to mortgage the said property and the same is corroborated by PW10 who stated that permission to mortgage was granted vide Ex. PW10/A. However, the permission was obtained fraudulently as it has come through the testimony of PW20 that LIC had not issued the NOC on the basis of which permission to mortgage was granted by the DDA. CC No. 06/12 & ID No. 64/19 Page 302 of 402
State vs. Arvind Johri. & Ors Judgment dt.18.10.2022
388. There is report of Ms. Geeta Babbar, another panel advocate dated 15.06.2002 Ex.Pw12/YYYYY on record in respect of aforesaid property No. 284A, New Friends Colony, New Delhi of Sh. Anil Kumar Jaggi. In the said report, she has verified the said property in the name of Sh. Anil Kumar Jaggi, who is the absolute owner of the said property vide conveyance deed dated 23.06.1998. She stated that after careful inspection of the records at Registrar Office, she did not find any registered charge whether by way of mortgage, sale, gift or any other mode of transfer and opined that the property is free from all encumbrances and is having a clear and marketable title.
389. There is also valuation report of Gogia & Associates, Govt. Approved valuer dated 11.06.2002 Ex. PW12/ZZZZZ in respect of the aforesaid property of Sh. Anil Kumar Jaggi in which market value of the property has been assessed at Rs.1,11,62,325/
390. In the light of aforesaid discussions, when there was certification by the Panel Advocate of the Bank regarding mortgageability of the immovable properties, A8 K.B. Relan cannot be blamed to have accepted the title deeds presented to him on the basis of certification given by the panel advocate in compliance with requirements of the Bank as taken in conspiracy or collusion with partners of the borrower firm. The property documents were got vetted by CC No. 06/12 & ID No. 64/19 Page 303 of 402 State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 another advocate Sh. V.P.S. Ahluwalia vide letter dated 11.12.2003 Ex. PW12/D12. There is another letter dated 10.06.2003 of Sh. K.K. Sharma, Advocate addressed to the Senior Manager, PNB, New Rohatrak Road Branch, New Delhi Ex. PW12/D9 by which he has vetted the property documents of Smt. Ram Rakhi.
391. Not only this, it does not appear that there was any occasion for A8 K.B. Relan or any other bank official to raise any suspicion on the identity of the guarantors because so called guarantors who were appearing in the bank were the same persons whose photographs were affixed either on the title deeds annexed with the loan documents or on the address proof documents submitted alongwith the guarantee documents in the form of ration card.
392. In this regard, PW12 Sh. RM. Sachdeva has admitted in his cross examination by Ld. Counsel for A8 that the owners of the properties, whose photographs are available on the loan documents, came to the bank and signed the loan documents.
393. PW17 Sh.D.K. Parashar stated in his examinationinchief that Agreement of guarantee Ex. PW17/C was executed by Ms. Shanti Devi and Agreement of guarantee Ex. PW17/D was executed by Ms. Ram Rakhi who had signed in his presence on every page . During his crossexamination by Ld. CC No. 06/12 & ID No. 64/19 Page 304 of 402 State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 Counsel for A2, he again categorically stated that both Ms. Shanti Devi and Ms. Ram Rakhi had signed in his presence and they were separate persons. Though, he stated that he was not familiar with other guarantors.
394. PW23 Sh. Ashok Ramchandani stated in his crossexamination by Ld. Counsel for A8 that whenever limit is enhanced fresh documentation takes place. In the present case, fresh documentation was done number of times and each time Smt. Ram Rakhi was coming to the bank for execution of documents. He was shown ration card Ex. PW5/D purported to be of Ram Rakhi and he admitted that the lady whose photograph is there on Ex. PW5/D had come to the bank. He was also shown relinquishment deed dated 19.06.2001 Ex.PW2/B and he admitted that the lady whose photograph is pasted on Ex.PW2/B had come to the bank as Shanti Devi. He was further shown conveyance deed dated 23.06.1998 Ex.PW1/G and he admitted that the person whose photograph is pasted on Ex.PW1/G had come to the bank as Anil Jaggi.
395. PW32 Sh. Rajiv Mahajan upon seeing the relinquishment deed Ex.PW2/B deposed that the lady whose photograph is affixed at point A on Ex. PW2/B had come to the bank and executed the documents in his presence. Similarly, having seen the Conveyance Deed dated 23.06.1998 Ex. PW1/G, he stated that the person whose photograph is affixed at point A on Ex. PW1/G had CC No. 06/12 & ID No. 64/19 Page 305 of 402 State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 come to the bank for execution of documents.
396. Thus, A8 K. B. Relan cannot be blamed for identifying the impersonator as guarantors/ real owners in conspiracy with partners of the firm. He was relying upon the reports of panel advocate and of approved valuer regarding authenticity of the documents. The identification of the guarantors was ensured by him by taking their identify proofs in the form of ration card and on the basis of photographs affixed on the registered title documents.
397. Ld. Prosecutor though has argued that it was the responsibility of A8 K.B. Relan being Head of the Branch to verify the genuineness of the title documents. He submitted that the Branch Manager could have obtained certified copy of the title deeds from the Sub Registrar Office and verified the genuineness of the documents by comparing the same with the title documents submitted by the borrower firm in the bank but no such steps were taken by A8 K.B.Relan in conspiracy with the partners of the borrower firm in order to facilitate them in submitting the forged documents.
398. On the contrary, Ld. Counsel for A8 contended that the said practice was not in vogue by that time and the same was adopted by the bank later on for which a circular was also issued by the Bank.
399. I find substance in the submissions of Ld. Counsel for A8. The CC No. 06/12 & ID No. 64/19 Page 306 of 402 State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 report Ex. PW29/B prepared by Sh. V.K. Kapoor, the Internal Chief Auditor of the bank who conducted the audit of account pertaining to M/s Gaaman Global Exports, shows under the head "Suggestions and recommendations to plug the loopholes that have come to light during investigation" that Strict adherence of the systems and procedures prescribed by the bank. Genuineness of the title documents should be confirmed after obtaining certified copy thereof from the Sub Registrar's office for comparing.
400. These recommendations substantiate the argument of Ld. Defence Counsel that the procedure of verifying the genuineness of title documents after obtaining certified copy thereof from the Sub Registrar's office for comparing was not in practice at the time of availing loan by the firm M/s Gaaman Global Exports and the said procedure was recommended by PW29 Sh. V.K. Kapoor vide his report Ex.PW29/B. Moreover, Ld. Defence Counsel has placed on record the Bank Circular dated 15.07.2008 wherein reference of Fraud Prevention Cell internal circular letter no. 25/2008 dated 02.05.2008 was made whereby it has been specifically advised to all offices that the branch official should not leave the entire task of verification of the property to the advocate and independent verification about the title and enforceability of the mortgage be ensured by visiting the property and comparing the particulars of the original CC No. 06/12 & ID No. 64/19 Page 307 of 402 State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 title deeds offered as security with the certified copy of the title deed after obtaining the same from the SubRegistrar office and satisfy himself about the genuineness of the original sale deed/lease deed as received from the borrower.
401. As such, the procedure of comparing the title documents from the certified copy thereof obtained from the Sub Registrar's Office was introduced by the Bank in the year 2008 , whereas cash credit facilities were obtained by M/s Gaaman Global Exports from the period 2001 to 2003 when the said practice was not in vogue.
402. Ld. Prosecutor has also vehemently argued that the Branch Manager was obliged to identify the guarantors by obtaining their original ID proofs but in the present case the Branch Manager i.e. A8 K.B. Relan has relied upon the photocopy of the ration cards of the purported guarantors.
403. A perusal of the record reveals that as per banking circular and guidelines contained in Ex.PW47/D1 (Colly), any one of the following documents may be obtained from the guarantor as address proof;
(a) ration card
(b) passport
(c) Identity card issued by Election Commission
(d) Driving license CC No. 06/12 & ID No. 64/19 Page 308 of 402 State vs. Arvind Johri. & Ors Judgment dt.18.10.2022
(e) Identity card issued by Armed Forces
(f) Copy of electricity bill or telephone bill showing address proof
(g) Any document from local body showing residential address
(h) Any other document in support of address given in the declaration
404. As such, submission of photocopy of ration card of Smt. Ram Rakhi Ex.PW5/D and of Ms. Stella A. Biswas Ex.PW12/VVVV which were attested by A2 Mahan Mukherjee, partner of the borrower firm were sufficient compliance of ID proof of these two purported guarantors. Similarly, photographs of other purported guarantors of Smt. Shanti Devi and Sh. Anil Kumar Jaggi were affixed on the registered title documents and they had also been appearing in the bank for execution of guarantee documents as deposed by prosecution witnesses as noted above and it was enough for A8 K.B. Relan to believe the impersonators to be real owners. Therefore, it cannot be said that A8 K.B. Relan did not obtain proper ID proofs of purported guarantors and he cannot be faulted on this count.
405. Generally the legal search report would be relied upon by the bank authorities while processing any loan. Therefore, by taking such reports on the face of it, one cannot assume that A8 K.B. Relan was in any manner involved CC No. 06/12 & ID No. 64/19 Page 309 of 402 State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 in getting such reports. The prosecution has not brought anything on record that legal search reports by the panel advocate and valuation reports by the approved valuer were given in collusion and connivance of accused K.B. Relan fraudulently. Rather, the prosecution witnesses have admitted that there was no defect in the reports prepared by panel advocate and approved valuer.
406. PW12 Sh. R.M. Sachdeva during his crossexamination by Ld. Counsel for A10 has admitted that no defect was pointed out by the advocate from the panel of the bank. PW42 Sh. V.K. Sharma, the then Regional Manager has also stated in his crossexamination by Ld. Counsel for A8 that in the present case, before enhancement of the limit, either no regularity with regard to title deeds was pointed out or the same has been removed. The witness further admitted in his crossexamination by Ld. Counsel for A10 that till the time he was posted in Regional Office, the identity of the guarantor was not disputed.
407. As such, when legal search reports did not point out any irregularity in the title documents, it would be far fetched to fasten the liability on A8 K.B. Relan regarding having any proximity or agreement with other co accused / borrowers, rather it appears that accused being Branch Manager of the bank followed all the guidelines of the bank at the time when the loan was being processed and it cannot be said that A8 K.B. Relan in conspiracy with partners CC No. 06/12 & ID No. 64/19 Page 310 of 402 State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 of the borrower firm did not verify the proper identification of purported guarantors and this claim of the prosecution is liable to be rejected. POST SANCTION OF CREDIT FACILITIES A. FAILURE TO ENSURE END USE OF THE CREDIT FACILITIES
408. The Ld. Prosecutor has vehemently argued that it was the duty of the Branch Manager to oversee that the loan and the other facilities granted by the Bank to the borrower have been utilized for the purpose for which the same have been sanctioned and disbursed to the borrower. He submitted that in the present case, A8 K.B. Relan, the Branch Manager was in conspiracy of the partners of the firm to cheat the Bank and, therefore, he did not ensure the end use of the loan and other facilities granted to the borrower firm M/s Gaaman Global Exports from time to time which resulted in siphoning off the funds of the firm by its partners.
409. Per contra, Ld. Counsel for A8 has vehemently submitted that A8 K.B. Relan, being the Branch Manager has acted as per the banking guidelines diligently to ensure the end use of the facilities granted by the Bank to the borrower firm. He submitted that A8 K.B. Relan had got inspected the stocks of the rice of the firm which was kept as primary security with the Bank from time CC No. 06/12 & ID No. 64/19 Page 311 of 402 State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 to time besides getting the inspection done of the books and stock register maintained by the firm through the officials of the Bank. He further submitted that the stocks were duly maintained by the firm and at no point of time it was brought to the notice of A8 K.B. Relan that the funds of the firm were diverted.
410. In view of the aforesaid allegations and submissions, first it has to be seen as to how the end use of the credit facilities granted to a borrower against primary security of stock of rice is to be ensured by the Bank. In this regard, statement of PW22 Sh. Ramesh Kalia, the Loan Officer posted in New Rohtak Branch of PNB from 24.01.2004 till July 2007 is relevant. He stated during his crossexamination by Ld. Counsel for A8 that in case of loan against stock in a trading account, they obtain monthly stock statement from the borrower and physically check the stock on ground. To build up stock by a new trading concern, the bank makes the payment directly to the supplier. In a running account also, payment is made directly to the supplier. LC can also be issued to the borrower for making purchase. By the aforesaid measures, the end use of the loan is monitored by the bank. Similarly, PW42 Sh. V.K. Sharma, the then Senior Regional Manager has admitted in his crossexamination by Ld. Counsel for A8 that the periodical inspection of the stocks and books of the parties are carried out to verify the end use.
CC No. 06/12 & ID No. 64/19 Page 312 of 402
State vs. Arvind Johri. & Ors Judgment dt.18.10.2022
411. As such, it is apparent that the end use of the credit facilities against primary security of stocks of rice is checked at the branch level by periodical inspection of the stocks and books/register maintained by the party. Now, it is to be seen as to whether A8 K.B. Relan, being the Branch Manager had followed the said practice of the Branch in order to ensure the end use of the credit facilities granted to M/s Gaaman Global Exports. In this case, the Regional Office had sanctioned two types of financing in favour of the borrower firm, one for domestic trade for sale of rice and other for export trade of sale of rice in the form of packing credit limit.
412. As regards the stock of domestic trading, the same were verified from time to time by the officer of the bank as stated by the prosecution witnesses during their crossexamination. PW12 Sh. R.M. Sachdeva has stated in his crossexamination by Ld. Counsel for A2 that the stocks were kept in a godown taken on rent. The stock was periodically checked by the Bank Officers and report was prepared. He further stated that the stock was checked on monthly basis and he had also checked the stock. The witness admitted during his crossexamination by Ld. Counsel for A8 that till 2003, adequate stocks were available to cover the loan amount. The witness further stated that the audit of the stock has been carried out in March 2004. He was shown photocopy of CC No. 06/12 & ID No. 64/19 Page 313 of 402 State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 three stock statements as on 30.09.2003, 31.10.2003 and 31.01.2004 Ex.PW12/D27 to Ex.PW12/D29 of M/s Gaaman Global Exports which he admitted to have verified by him after inspection. He also admitted that the party used to submit stock statements periodically and these used to be verified by the officers of the bank. He further admitted that there was a concurrent auditor in the branch who was conducting audit of the branch including the loans advanced, on day to day basis. Voluntarily, he stated that he was not verifying the properties. To the suggestion that concurrent auditors used to go along with the officer of the bank for stock verification, he stated that Sh. M.L. Diwan, Concurrent Auditor had accompanied him once or twice for stock verification. He also admitted that the Branch sends quarterly review sheets to the Regional office. He further admitted that when the borrower shifted stock of packing credit facility to Gandhi Dham, the situation became alarming and the Branch took notice of the same.
413. Similarly, PW22 Sh. Ramesh Kalia admitted in his cross examination that quarterly review sheets, containing the status of the loan account are sent by the branch to the Regional Office. Along with the review sheets, statement of loan accounts are also sent to the Regional Office. Whenever any party seeks enhancement of the loan limit, latest status of the CC No. 06/12 & ID No. 64/19 Page 314 of 402 State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 account is sent along with the proposal for enhancement of the limit.
414. The aforesaid evidence on record brings forth that A8 K.B Relan being the Branch Manager was monitoring the end use of funds by checking the stocks and books of accounts of the firm. The bank officials alongwith Concurrent Auditor used to visit the premises of the borrower to verify the stocks. The quarterly review sheets were sent to the Regional Office by the Branch. PW12 has also stated that adequate stocks were available till 2003.
415. In so far as stock of export trading is concerned, PW12 R.M. Sachdeva has admitted during his crossexamination that stocks pertaining to PC limit was transferred to Gandhi Dham by the party. As is borne out from the record that the account of the firm became irregular from April/May 2003 onwards after availing the packing credit limit which was sanctioned by the Regional Office on 10.03.2003 and A8 K.B. Relan had taken steps to identify the stocks pursuant to release of packing credit facility. Vide letter dated 23.09.2003 Ex.PW12/D25 to the DGM, North Delhi Region, he informed that the borrower has reportedly sent the stock for which PC limit was sanctioned to Gandhi Dham (Kutch), Gujarat. It was also observed by the Branch after checking the documents concerning the dispatch submitted by the borrower that the transporter used by the borrower is not approved transporter as per IBA CC No. 06/12 & ID No. 64/19 Page 315 of 402 State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 instructions/guidelines. Thereafter, A8 informed the Regional Office about the said development that the stocks have been sent after the expiry of shipment date as per foreign letter of credit. A status note dated 06.10.2003 Ex.PW4/D3 (also Ex.PW31/ZZ) was put up to Sh. Ved Vyas, the then DGM wherein observations were made about the seriousness of the issue on the basis of the said letter of A8. A8 K.B. Relan vide letter dated 23.09.2003 Ex. PW12/D26 has also written to M/s Star Freight Forwarder (Govt. Authorized Cutom House Agent), Gandhi Dham, Kutch, Gujarat that the goods kept with them were financed by the bank and were under hypothecation/charge of the bank and the same are required to be inspected regularly and a request was made to them to allow the branch officials to inspect the goods.
416. A8 K.B. Relan himself visited Gandhi Dham for inspection of the stocks and when the stocks were not identifiable, he reported the matter to the Regional Office vide his report dated 09.01.2004 Ex. PW12/D23.
417. The aforesaid circumstances suggest that A8 K.B. Relan has diligently followed the banking procedure to ensure the end use of the credit facilities sanctioned to firm M/s Gaaman Global Exports by carrying out the periodical inspection of the stocks of the firm and the claim of the prosecution that he has failed to do so cannot be accepted.
CC No. 06/12 & ID No. 64/19 Page 316 of 402
State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 C. EXCESS OVERDRAWING & HUGE CASH WITHDRAWAL IN THE LOAN ACCOUNT OF M/S GAAMAN GLOBAL EXPORTS
418. The prosecution has alleged that A8 K.B. Relan in furtherance of criminal conspiracy allowed excess overdrawing in the account of M/s Gaaman Global Exports beyond his discretionary power and also allowed huge cash withdrawals against the norms of the bank.
419. There is no dispute by A8 K.B. Relan to the fact that repeated overdrawings in the account of M/s Gaaman Global Exports were allowed by him beyond his discretionary power, but he claimed that such actions were sent to the Regional Office for confirmation and the same were also confirmed by the Regional Office.
420. PW22 Sh. Ramesh Kalia, the Loan Officer posted in PNB, NRB, in this regard, has stated in his crossexamination by Ld. Counsel for A8 that in a case where a particular limit is sanctioned to a borrower, the said limit can be exceeded at the request of the borrower according to the financial power vested with the bank's officer. If any request for a loan limit is made to Branch Manager beyond his power, he may either recommend to the higher competent authority for sanction of the same or he may sanction the same and seek CC No. 06/12 & ID No. 64/19 Page 317 of 402 State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 confirmation from the competent authority.
421. PW23 Sh. Ashok Ramchandani, clerk in PNB, NRB has admitted in his crossexamination by Ld. Counsel for A8 that whenever there were overdrawings above the powers of the Branch Manager, these used to be sent by the Loans Department to the Regional Office for confirmation. He further stated that in the letter seeking confirmation, telephonic approval if any, was not mentioned.
422. PW31 Sh. Vinay Kapoor, the Chief Manager at Regional Office has deposed in his examinationinchief that confirmation proposal dated 30.03.2002 received from the Branch Office, New Rohtak Road bearing signature of accused K.B. Relan at point A for confirmation of his action for having allowed overdrawing of Rs. 20 lakhs and the said proposal is Ex. PW31/R. He further deposed that accused Anil Aggarwal, however, recommended that Branch Manager be asked to get the account regularized and informed the date of regularization and thereafter, confirmation may be considered. He further deposed that vide letter dated 12.04.2002 Ex.PW31/S, the Regional Office sought justification from the Branch Office of temporary enhancement and the Branch vide letter dated 09.05.2002 Ex.PW31/T gave justification of the overdrawing and informed that the adhoc amount allowed to CC No. 06/12 & ID No. 64/19 Page 318 of 402 State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 the party has been deposited. He has identified the confirmation of action note dated 11.05.2002 of Regional office which is Ex. PW31/U bearing signature of Sh. S.S. Wadhwa and of accused Anil Aggarwal and initial of Sh. S.K. Marwah and office copy of letter dated 11.05.2002 of Regional office written to Sr. Manager, NRB vide which confirmation of action of the Branch Manager was conveyed and the same is Ex. PW31/V bearing initials of accused Anil Aggarwal at point A and initials of Sh. Wadhwa at point B. He has also deposed that Ex.PW31/W is another confirmation of action proposal dated 27.06.2002 of Branch Office seeking confirmation of his action in having allowed overdrawing of Rs. 20,46,531/ bearing signature of K.B. Relan at point A; and Ex.PW31/X is letter dated 11.07.2002 of regional office to BO seeking certain information/clarification regarding their confirmation proposal.
423. During his crossexamination by Ld. Counsel for A8, having seen the file Ex.PW31/A (Colly), he has identified the office copy of letter dated 11.05.2002 of Regional Office written to Senior Manager, New Rohtak Road Branch by which confirmation of action of the Branch Manager was conveyed. He also admitted that the Branch had the power to accommodate the borrower upto three months only. He did not remember whether Regional Office had the power to accommodate the borrower upto four months or more than that or the CC No. 06/12 & ID No. 64/19 Page 319 of 402 State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 conditions subject to which the borrower could be accommodated. He stated that when Branch accommodates a borrower on telephonic approval from the Regional Office, it seeks confirmation from the Regional Office by making a request on the prescribed format. He does not remember whether such action confirmations are sought by writing normal letters also. A request dated 18.06.2003 for action confirmation was sent by accused no. 8 K.B. Relan to the Regional Office in file Ex. PW31/DD (Colly) and the same is Ex. PW31/D3. To the suggestion that whenever action confirmation was sought, the Regional Office would not confirm the same till the time the account was regularized, he stated that it was not the case. He further stated that this would depend upon various conditions to be complied with before the action could be confirmed. He was shown in file Ex.PW31/DD (Colly), a letter dated 08.07.2003 from the Regional Office addressed to Sr. Manager, Branch Office, NRB and the same is Ex. PW31/D4 bearing initials of this witness at point A. He stated that vide this letter, the Branch Manager was advised to submit proposal for confirmation of action after regularization of account which was to be considered on merits.
424. PW42 Sh. V.K. Sharma stated in his crossexamination after seeing proposal dated 27.06.2002 Ex. PW31/W that vide this proposal the Branch had sought confirmation of its action of allowing overdrawing of CC No. 06/12 & ID No. 64/19 Page 320 of 402 State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 Rs.20,46,531/ due to LC debited in the account.
425. It is also to be noted that vide process note dated 30.01.2003 Ex.PW31/II made by A10 Anil Aggarwal, Senior Manager (Credit) and PW31 Sh. Vinay Kapoor, Chief Manager at Regional level on the proposal of the branch for enhancement of CC (H) limit to Rs. 125 lakhs, observations were made that the repeated overdrawing clearly warrants the case as a need based and thus the party need enhancement of limit which calls for sanctioning of enhancement.
426. In view of the said observations made in the process note Ex.PW31/II and the evidence on record, it can be deduced that the overdrawings were taken by the Regional Office as need based and the overdrawings which were allowed by the branch manager were sent to the Regional Office for confirmation and the same were also confirmed. The Regional Office has accorded sanction enhancing the limit only after fully satisfied about the transactions being genuine. This fact has been admitted by PW42 Sh. V.K.Sharma, the then Senior Manager in his crossexamination when he stated that he had sanctioned the limit after all the queries were satisfied by the loans department of his office. It shows that if the Regional Office had found anything questionable or against the banking guidelines, further sanctions and CC No. 06/12 & ID No. 64/19 Page 321 of 402 State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 ratifications of these actions would not have been confirmed.
427. Although there are communications on the record which shows that the Branch manager has sought the confirmation of the action for overdrawing in the account vide Ex.PW31/W and the Regional Office vide Ex.PW31/X did not reject the same but asked the branch manager to regularize the account. But as per the Book of Instructions on Loans 2005 under the Heading Confirmation of action in sanction exceeding discretionary power, it is mentioned at para a and b as under:
a) In case, officials in organizational interest exceed their vested loaning powers, then after such a transaction has taken place (including the cases where telephonic/oral sanctions were obtained from the higher authority for exceeding the powers), it should be reported immediately to the controlling authority, ie RM/SRM/ZM for confirmation of action by the Competent Authority through submission of a proposal on the prescribed format.
b) The competent authority will grant or reject requests for confirmation of action within 15 days of the receipt of the proposal. In case, queries/clarification are necessary for grant of such confirmation, the competent authority may take another 15 days for taking the final action in this regard. However, in all circumstances the decision with regard to confirmation/rejection of the proposal CC No. 06/12 & ID No. 64/19 Page 322 of 402 State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 has to be taken and conveyed within a period of maximum one month of the receipt of the original proposal. Otherwise, the transaction in question shall be deemed to have been ratified/confirmed by the competent authority.
428. There is nothing on record to suggest that the actions seeking confirmation of overdrawings by the branch manager has been rejected within 15 days of the receipt of the proposal and therefore the same is deemed to be allowed by the competent authority in terms of aforesaid guidelines.
429. So far as the issue of huge cash withdrawals is concerned, it may be noted that this issue was taken up by the Regional Office vide status note dated 30.01.2003 Ex.PW31/II and the same was replied by the branch vide Ex.PW31/KK & Ex.PW31/SS. The Regional Office had found the said explanation of the branch to be satisfactory, though it was recommended that the branch manager shall monitor the cash transactions. Therefore, A8 K.B. Relan cannot be faulted for cash withdrawals. If the Regional Manager had found anything wrong in allowing the cash withdrawals and cash transactions, he would not have accorded the sanction of the enhanced facility.
430. Moreover, PW4 Sh. Ved Vyas who was the DGM, North Delhi Region categorically stated in his crossexamination by Ld. Counsel for A8 CC No. 06/12 & ID No. 64/19 Page 323 of 402 State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 that the generally if any enhancement is allowed, the previous irregularities are considered by the sanctioning authority. In case any observations are not sent and enhancmenet is allowed, it may be presumed that the overdrawings are confirmed.
431. PW42 Sh. V.K. Sharma, the Senior Regional Manager who had granted the sanction has categorically stated during his crossexamination that there is an inspection section in the Regional Office. The primary duty of Inspection Section in the Regional Office is to get the irregularities pointed out in the reports of the inspection conducted by the Head Office, by follow up with the branch. He admitted that if any irregularity has been pointed out in the Inspection report, enhancement of limit is not sanctioned till the time the irregularity is dropped or has been removed.
432. In view of the aforesaid discussions, it cannot be said that A8 had allowed excess overdrawings beyond his discretionary power and also allowed huge cash withdrawals against the norms of the bank.
433. During course of the arguments, Ld. Public prosecutor has heavily relied upon the testimonies of some of the bank witnesses and vehemently contended that A8 K.B. Relan being Branch Manager has flouted the banking rules and guidelines and abused his position as a public servant by favourably CC No. 06/12 & ID No. 64/19 Page 324 of 402 State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 processing the loan proposal of the firm in conspiracy of the partners of the borrower firm which facilitated grant of various credit facilities to the firm on the basis of forged documents. He submitted that the bank had got conducted the inspection of the account of borrower firm M/s Gaaman Global Exports through PW29 Sh. V.K. Kapoor, the Internal Chief Auditor of the bank who submitted his report Ex.PW29/B highlighting the irregularities on the part of A8 K.B. Relan in presanction and post sanction of loan and credit facilities. He while referring the testimony of PW31 Sh.Vinay Kapoor, the then Chief Manager at Regional Office has argued that A8 K.B.Relan has submitted a false report vide letter dated 30.01.2002 that he (K.B. Relan) had personally met guarantors, namely, Smt.Ram Rakhi and Smt.Shanti Devi, whereas Smt.Ram Rakhi had expired way back in the year 1990 and Smt.Shanti Devi was mentally retarded at that time. He further referred the testimony of PW42 Sh. V.K.Sharma, the then Senior Regional Manager and submitted that the said witness has deposed the facts which clearly suggest that A8 K.B. Relan had allowed huge cash withdrawal, overdrawings and devolvement of LCs flouting the banking rules and guidelines. Ld. Prosecutor has further vehemently submitted that when the initial loan proposal was submitted by borrower firm M/s Gaaman Global Exports for sanction of CC (H) limit of Rs. 20 lakhs, A8 K.B. Relan, the CC No. 06/12 & ID No. 64/19 Page 325 of 402 State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 Branch Manager had pressurized his subordinates to give favourable note in favour of borrower firm . While making this submission, he has extensively referred to the testimony of PW44 Sh. R.P. Bansal who was posted as Manager in PNB, NRB, New Delhi and was working under A8 K.B. Relan during the relevant time.
434. In view of the aforesaid submissions made by Ld. Prosecutor, the testimonies of bank witnesses as referred by him, at branch level as well as at Regional Office, are required to be discussed in detail.
435. PW29 Sh. V.K. Kapoor was posted as Internal Chief Auditor in Punjab National Bank, Parliament Street Branch, New Delhi in the year 2004. He conducted the investigation pertaining to the account of M/s Gaaman Global Exports which had become NPA and submitted his report Ex.PW29/B to the Inspection and Control Division, Head Office, PNB, New Delhi vide letter dated 08.06.2004 Ex.PW29/A. In the said report, he has highlighted the irregularities pertaining to presanction appraisal as well as post sanction followups in the account of M/s Gaaman Global Exports. There were also irregularities with regard to creation of equitable mortgage of immovable properties, physical verification of immovable properties mortgaged with the bank, documentation etc. The irregularities pertaining to presanction appraisal have been mentioned CC No. 06/12 & ID No. 64/19 Page 326 of 402 State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 at item No. 8 of his report and the irregularities pertaining to creation of mortgage of immovable properties have been mentioned in para No.13 D (A) to (D). The post sanction lapses at Branch level as well as at regional office level are mentioned in Para 22 (b) of the report Ex.PW29/B.
436. A perusal of inspection report Ex.PW29/B which is in tabular form shows that in para (row) No. 8 under the heading "Comments on presanction appraisal", PW29 Sh. V.K. Kapoor has pointed out few irregularities at the branch level prior to sanction of the credit and other facilities to the borrower firm. However, PW42 Sh. V.K. Sharma, the Senior Regional Manager has categorically admitted during his crossexamination by Ld. Counsel for A8 that if any irregularity has been pointed out in the inspection report, enhancement of limit is not sanctioned till the time the irregularities are dropped or have been removed. He further admitted that in the present case, before enhancement of the limit, either no irregularity with regard to title deeds was pointed out or the same had been removed.
437. Since in this case, the limits of the credit facilities were enhanced by the Senior Regional Manager from time to time, therefore irregularities, if any, either may have been removed or stood dropped as soon as the limits were enhanced by the Regional Office. Hence, the irregularities pointed out by PW CC No. 06/12 & ID No. 64/19 Page 327 of 402 State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 29 in his report Ex.PW29/B in Row No. 8 are inconsequential. Even otherwise, the observations of PW29 in para no. 8, under the heading "Comments on pre sanction appraisal" were part of the queries raised by the Regional Office which were responded to by the Branch.
438. In para no. 13 under the heading 'Position of Security', PW29 Sh. V.K. Kapoor in his report Ex.PW29/B has shown details of (A) Primary Security; (B) Collateral Security, (C) Guarantors and (D) Other details. Under the heading (D) 'Other Details', he has made remarks against some questions. Against the question at Serial No. (i) Whether EM/charge has been created validly, he has remarked as "Yes". It shows that he has not found any fault at the level of the branch in creation of equitable mortgage. In the same para No. 13 (D) under the heading 'Other Details", he has highlighted the irregularities pertaining to creation of mortgage of immovable properties in para nos. 13 D (A) to (D). In para No. 13 D (C), he has made observations regarding property No. B65, Paschimi Marg, Vasant Vihar New Delhi of Ms. Stella A. Biswas, inter alia, that "permission from DDA to mortgage IP held on record is photocopy of first page and back of page/second page containing signatures of authority, not held". However, PW10 Sh. M.C. Singhal, the then Deputy Director in Cooperative Society and Group Housing Branch of DDA has proved CC No. 06/12 & ID No. 64/19 Page 328 of 402 State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 vide Ex.PW10/A that permission to mortgage the above property of Ms. Stella A. Biswas was granted by DDA. Therefore, this observation made by PW29 Sh. V.K. Kapoor is contrary to the record.
439. He has also observed in para 13 D (D) that, "The photographs of IPs mortgaged not obtained except in case of IP of A.K. Jaggi that too not signed by mortgagor". In this regard, it may be noted that there is no dispute about the identity of the mortgaged properties. Therefore, if the photographs were not taken or available on record of the mortgaged immovable properties at the time when PW29 Sh. V.K. Kapoor conducted the inspection, no fault on the part of the Branch can be found on this count. The prosecution has not shown that there was any such practice or a requirement of bank which has been flouted by the Branch Manager K.B. Relan. Even otherwise, it will have no effect as the identity of the mortgaged properties is not in dispute and at the most, it may be a procedural irregularity. Similarly, PW29 has observed in para 13 D (A) that Title Deed Register should not be witnessed by the Loan Department. Again, the said observation is not based on any banking guidelines as per book of instructions and hence cannot be said to be an irregularity on the part of the Branch.
440. PW29 Sh. V.K. Kapoor has also pointed out post sanction lapses CC No. 06/12 & ID No. 64/19 Page 329 of 402 State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 at the branch level as well as at the regional level in para no. 22 of his report Ex.PW29/B, but when he was subjected to cross examination, the said adverse observations did not sustain. The same can be seen from the crossexamination of the witness. In his cross examination by Ld. Counsel for A8, the witness admitted that if any cheque deposited by the borrower is returned back dishonored, the same has to be debited from the account of the parties. He again said that the mere deposit of the cheque is not relevant. If credit has been afforded in the relevant account and the cheque is dishonored, then the same is debited. He admitted that in the year 2002, whenever, the cheque was sent for clearing, it used to be first credited and if, it was returned dishonored, it was debited from the party's account. He was put a question whether such debit in the account will not amount to disbursement of fresh enhanced limit to which he answered that it would depend upon from which account the cheque has been issued, credited or debited. He was put another question that in a loan account, whether CC or term loan, when a cheque is sent for clearing after crediting the same in the account of the borrower and the same is returned dishonored and is debited in the borrower's account, the same does not account to grant of fresh limit to which he replied that if it is existing loan account only then the amount can be debited on the return of the dishonored cheque and it would not amount CC No. 06/12 & ID No. 64/19 Page 330 of 402 State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 to fresh disbursement, if it is within the sanctioned limit. He admitted that even if the debit on account of dishonored cheque is going beyond the sanctioned limit, still the cheque would be debited. He stated that in such case, it will not amount to fresh disbursement. He was shown certified copy of statement of account Ex.PW32/E and suggested that entry dated 07.03.2002 of DD return of Rs.2,50,500/ does not amount to fresh disbursal, to which he admitted that there is no fresh disbursal on 07.03.2002.
441. The aforesaid crossexamination of the witness shows that he was disclosing the truth when he was being extensively crossexamined by the Ld. Defence Counsel. He was shown letter dated 26.07.2002 Ex.PW31/L of New Rohtak Road Branch addressed to Senior Regional Manager and suggested that in the said letter, it is stated that market reports were obtained to which he stated that in this case the limits were sanctioned on 07.09.2001 and no market reports were obtained at that time. He stated that on 07.03.2002, Regional Office had imposed condition for obtaining market report. He further stated that in the letter Ex.PW31/L, there is only intimation regarding market report, however no market report was enclosed with the letter. He was shown another letter dated 01.03.2002 Ex.PW31/N, written by Senior Manager Branch to Senior Regional Manager and suggested that para 11 of Ex. PW31/N mentions about markets CC No. 06/12 & ID No. 64/19 Page 331 of 402 State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 report. He stated that in this case limits were sanctioned on 07.09.2001 and no market report were obtained and again reiterated that it contains only intimation regarding market report, but no such market report was enclosed with the letter. He stated that in letters Ex.PW31/L and PW31/N, there is no mention of Tika Ram Manish Kumar, CC Party of the branch reference of which is given in the Confidential Report of M/s Gaaman Global Exports. He further stated that Confidential Report includes market report. He further stated that market report is prepared after verifying about the credibility of the borrower by going to the field and gathering information about the borrower from other parties. The information was obtained verbally from the other parties and recorded in the Confidential Report.
442. This part of crossexamination of PW29 shows that he is not a straightforward witness and trying to confuse and complicate the things. At one hand, he takes a stand that market reports were not enclosed with the above letters sent by the Branch to the Regional Office, but in the same breath he contradicts his own statement when he states confidential report includes market report and confidential reports were taken in this case.
443. PW29 further stated in his crossexamination that in this case, the primary security should have been stocks, however when they inspected, the CC No. 06/12 & ID No. 64/19 Page 332 of 402 State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 stocks were not available. He further stated that he had not gone to check the stock since the stocks were not available. He admitted that in his report Ex.PW29/A (the same appears to be a typographical mistake as the report is Ex.PW29/B and not Ex. PW29/A) in para 15 (iii) pertaining to valuation of security, he has valued stocks at Rs.1,39,16,474/. He volunteered that he has mentioned the same as per stock audit report. He admitted that in para 15 (v) it is stated that verification was not done by the investigation officer. He stated that he was the investigation officer. He again volunteered that there was no stock, it could not have been checked. He stated that in June, he had gone alongwith an officer of New Rohtak Road branch to a godown to check the stock but the stocks were not found. He did not remember where the godown was located or the date when they had gone. He categorically admitted that although he had gone to the godown to check the stocks, but in the report Ex.PW29/A it is stated that he had not verified the stocks. These statements of the witness again show that he is shifting his stands rapidly. At first instance, he stated that he had not gone to check the stocks since the same were not available but he subsequently stated that he had gone to a godown alongwith an officer of the Bank to inspect the stocks, but they could not find the stocks. He even could not tell the name of the officer who had accompanied him to the godown nor he CC No. 06/12 & ID No. 64/19 Page 333 of 402 State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 could tell the date when they visited the godown nor location of the godown .
444. It is also pertinent to note that during his crossexamination by A2, he categorically admitted that as per para 15 (iv) of his report Ex.PW29/A, no adverse features were noticed during the inspection conducted in respect to stocks.
445. PW29 was shown a letter dated 11.09.2002 ExPW29/DA of the office of Senior Regional Manager in file Ex.PW31/A (Colly) (maintained at Regional Office pertaining to M/s Gaaman Global Exports) and he stated that in the said letter, it is stated that the amount of both the ILCs have been deposited by the parties and it is not a case of devolvement, though he volunteered that the said letter pertains to only two ILCs. However, there were number of others ILCs which have devolved.
446. PW29 in his further crossexamination has claimed that the review sheets have not been sent regularly to the regional office. He denied the suggestion that if review sheets are not sent, enhancement is not done by the Regional Office. Voluntarily, he stated that at the time of enhancement, figures of the review sheets are forwarded to the Regional Office. He admitted that there is a prescribed format of review sheet and that the review sheet was sent on quarterly basis. He stated that if review sheet is not sent, the Regional Office CC No. 06/12 & ID No. 64/19 Page 334 of 402 State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 sends a reminder to the Branch Office. He further stated that review sheets are sought by the Regional Office to monitor the accounts. To the suggestion that review sheets are important method to monitor the account, he stated that this is not the only method to monitor the account. He was shown pages 329, 376 and 400 of file Ex.PW31/A (Colly) and he admitted that there are review sheets of NRB as on March 2002, June 2002 and September 2002 respectively. He was again shown pages 345, 363 and 393 of file Ex.PW31/DD (Colly) and he admitted that there are review sheets of NRB as on December 2002, March 2003 and June 2003 respectively.
447. Thus, it is clear that review sheets have been sent by the Branch on quarterly basis to the Regional Office which fact has been admitted by PW29 when he was shown the review sheets in the file maintained at Regional Office, which demolished his claim that review sheets have not been sent regularly to the Regional Office. It shows that PW29 was first denying a fact and when he was being confronted with the document on record, he admitted the same.
448. He was suggested by Ld. Counsel for A10 that his report Ex.PW29/B is fabricated or that the same has been prepared to falsely implicate the bank officials, which suggestion he denied. During his crossexamination by Ld. Counsel for A8 also, he denied the suggestion that the report Ex.PW29/B CC No. 06/12 & ID No. 64/19 Page 335 of 402 State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 was fabricated later on. He further denied the suggestion that the proforma on which the report Ex.PW29/B has been given was not available prior to 02.09.2004. He further denied the suggestion that the contents of the report Ex.PW29/B are factually incorrect.
449. These suggestions were based on the fact that the proforma on which the report was prepared was not in vogue at the time when the inspection was conducted by PW29 i.e. before 08.06.2004. The said proforma on which he has prepared the report Ex. PW29/B has been introduced vide Circular No. 44/2004 dated 02.09.2004 Mark PW29/D2. It is not understandable that when the proforma which came into being vide above circular in September 2004, how PW29 has prepared the report on the same proforma in June 2004 when the said proforma was not in force or available at that time. Thus, there is substance in the contention of the Ld. Counsel for A8 that the contents of the report Ex.PW29/B are not only factually incorrect but appears to have been manipulated later on.
450. The Ld. Prosecutor during course of the arguments has specifically invited attention of this Court to para no. 22 of the report Ex.PW29/B under the heading "Details of lapses for which accountability to be examined" wherein PW29 has highlighted various lapses and irregularities at the branch level and CC No. 06/12 & ID No. 64/19 Page 336 of 402 State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 at the regional level in presanction and post sanction of loan and credit facilities. At the outset, as noted above the lapses, if any, stood dropped as soon as the Regional Office enhanced the credit facilities. Further the said adverse observations made by the witness cannot be said to have attracted criminality on the part of the Branch Manager as PW47 Sh. Satendra Singh, the Investigating Officer of the case has categorically stated in his crossexamination conducted by Ld. Counsel for A8 that he had examined Sh. V.K. Kapoor but he did not consider it necessary to call for the report Ex.PW29/B for investigation of this case. He did not call for the report Ex.PW29/B as the said report was from the perspective of the bank and not from the perspective of criminal investigation. He further categorically stated that in all cases investigated by him relating to bank fraud, he does not rely upon the internal bank investigation report. He stated that he examined Sh. V.K. Kapoor in order to find answers to certain questions which had cropped up during investigation.
451. These statements made by the IO shows that he even did not look into the report Ex.PW29/B as the said report was from the perspective of the bank and not from the perspective of the criminal investigation. He even did not rely upon the said report and, therefore, there is no force in the contention of Ld. Prosecutor that the report Ex. PW29/B enumerates various lapses and CC No. 06/12 & ID No. 64/19 Page 337 of 402 State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 irregularities on the part of the Branch Manager K.B. Relan to fasten the criminal liability.
452. It may also be noted that though PW29 has pointed out post sanction lapses at regional level in para no. 22, but it is interesting to note that in his crossexamination by Ld. Counsel for A10, he categorically stated that he had not inspected the file of the Regional Office during investigation conducted by him. During crossexamination by Ld. Counsel for A8 also, he stated that he had not checked the record of the regional office. To the question, as to whether he knows that by June 2004, some of the record pertaining to this account had already been sent to the regional office, he stated that he had checked the correspondence files and the documents pertaining to this account which were available in the branch office. At that time, the original documents were with the CBI and he had seen authenticated photocopies of the documents.
453. One wonders that when this witness did not even bother to inspect the records available at the regional office pertaining to account of borrower firm M/s Gaaman Global Exports and he only checked the records available at Branch at the time of inspection, how he has made adverse comments against Regional Office in para no. 22 of his report Ex.PW29/B. It is, thus, evident that he has made adverse comments on the post sanction appraisals at the regional CC No. 06/12 & ID No. 64/19 Page 338 of 402 State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 level without even considering the complete record.
454. In view of the testimony of PW29 Sh. V.K. Kapoor as discussed above, I do not find that it is of any help to advance the case of the prosecution that A8 K.B. Relan committed grave lapses and irregularities while recommending the loan proposals to the Regional Office in criminal conspiracy with other accused persons.
455. Now, coming to the testimony of PW31 Sh. Vinay Kapoor who was posted as Chief manager at Regional Office during the relevant time.
456. PW31 had received the proposals from the Branch for sanction of credit facilities to M/s Gaaman Global Exports and he had dealt with the said proposals. During his examinationinchief he has proved various loan proposals of M/s Gaaman Global Exports sent by the Branch and communications exchanged between the Branch and the Regional Office which includes queries raised by the Regional Office with regard to the proposals and the replies thereto sent by the Branch. One of the letters proved by him is dated 31.01.2002 Ex. PW31/G (Colly) written by A8 K.B. Relan addressed to Senior Regional Manager, wherein he, inter alia, has stated the factum of having met Smt. Ram Rakhi and Smt. Shanti Devi personally who had told that they both felt indebted to A3 Rajendra S. Raikwar for everything and fully understood the implications CC No. 06/12 & ID No. 64/19 Page 339 of 402 State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 of equitable mortgage of their immovable properties against the loan availed by M/s Gaaman Global Exports, whose one of partners is A3 Rajendra S. Raikwar.
457. The Ld. Prosecutor has vehemently argued that this representation given by branch manager K.B. Relan is false on the face of it because Smt. Ram Rakhi expired in 1990 and Smt. Shanti Devi was mentally retarded. Therefore, K.B. Relan has made a false report and misrepresented the Regional Office for which a specific charge under Section 167 IPC has been framed against A8 K.B. Relan.
458. Perusal of the record shows that when the proposal for enhancement of credit facility from Rs. 20 lakhs to Rs.100 lakhs was pending consideration in the Regional Office, the Regional Office vide letter dated 28.01.2002 Ex.PW12/JJ [also Ex.PW31/F in file Ex.PW31/A (Colly)] had asked K.B. Relan, the Branch Manager to meet Smt. Ram Rakhi and Smt. Shanti Devi to ensure that these two ladies have offered their respective immovable properties as collateral security out of their free consent and to apprise them the implications of equitable mortgage of their immovable properties. It appears that the query of the Regional Office was based upon the fact that these ladies were third party and not connected with the business of the borrower firm. The tone and tenor of this letter reveals that the Regional Office did not intend to get their CC No. 06/12 & ID No. 64/19 Page 340 of 402 State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 identification verified but to ensure that they understood the implications of mortgage of their properties.
459. As it has come on record that Sh. K.K. Sharma, the panel advocate has submitted the legal search reports in respect of the properties owned by Smt. Ram Rakhi and Smt. Shanti Devi. Valuation reports of these two properties have also been submitted by Sh. V.D. Gandotra, the approved valuer. Both Sh. K.K. Sharma and Sh. V.D. Gandotra in their respective reports in no uncertain terms have identified Smt. Ram Rakhi and Smt. Shanti Devi as owners of the properties whom they had met at the time of their visit to the said properties. They also found the title documents of these properties free from any sort of legal defects. There was a process note Ex. PW12/N made by Sh. R.P. Bansal, Manager (Loans) in which he categorically stated to have met Smt. Ram Rakhi personally at the time of his visit to her property on 05.09.2001. He has also claimed that the lady who had met him on 05.09.2001 when he visited her property had appeared in the bank to execute the guarantee documents pursuant to sanction of Rs. 20 lakhs to the borrower firm. The photocopy of the ration card bearing the photograph of so called Smt. Ram Rakhi was submitted along with the loan documents. The Indemnity bond purported to be executed by Smt. Ram Rakhi bears the same photograph as appearing in the ration card CC No. 06/12 & ID No. 64/19 Page 341 of 402 State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 Ex.PW5/D. Similarly, K.B. Relan had made spot visit to the property of Smt.Shanti Devi where he found a lady purported to be Smt. Shanti Devi who had appeared in the bank also to execute the documents in respect of property No. N154, Greater Kailash, PartI, New Delhi. The registered Relinquishment Deed Ex. PW2/B bears the photograph of the lady who had appeared in the bank and who had met K.B.Relan at the time of his visit to the said property.
460. The prosecution has neither questioned the reports or verification of the property documents done by advocate Sh. K.K. Sharma who otherwise had the means to cross verify the photograph and documents from the record of the Sub Registrar which he even claimed to have visited nor doubted the version of Sh. R.P. Bansal who claimed to have met Smt. Ram Rakhi personally. In these circumstances, A8 K.B. Relan had no reason to doubt the identity of Smt. Ram Rakhi and Smt. Shanti Devi. Therefore, it cannot be said that A8 K.B. Relan knowingly prepared an incorrect report vide letter dated 31.01.2002 Ex.PW12/JJ [also Ex. PW31/F in file Ex.PW31/A (Colly)] in conspiracy with partners of the firm in order to facilitate the sanction of loan proposal by the Senior Regional Manager. A8 K.B. Relan, thus, is liable to be acquitted of the offence punishable under Section 167 IPC.
461. During crossexamination of PW31 Sh. Vinay Kapoor, he was put CC No. 06/12 & ID No. 64/19 Page 342 of 402 State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 a suggestion by Ld. Counsel for A8 that information regarding borrower and guarantor used to be gathered by the Regional Office from the branch as well as the other sources to which he stated that it was usually from the branch. He did not recollect that the information was collected from Zonal Office Kolkata, Zonal Office Lucknow, Branch Office Barabanki regarding guarantor Ms. Shefali and borrower Mr. Raikwar. He admitted that whenever queries in this case were raised by the Regional Office from the Branch, the Branch had replied to the same. He stated that the limit was sanctioned after satisfaction by the Regional Office. He admitted that it was in the knowledge of the Regional Office that collateral securities in this case were of third persons. He admitted that Regional Office used to gather information regarding running of the account from the Branch by various modes such as by correspondence or at times telephonically. He stated that review sheets are periodically submitted by the Branch offices to the Regional office and regular visits by Officers of Regional Office to the Branch are carried out. He further stated that the officers posted in Inspection Department of the Head Office also carry out periodic inspection of the branches. Their inspection reports are also sent to the Regional Office. He also stated that Regional Office also monitors the inspection reports.
462. He did not remember when was enhanced limit last sanctioned in CC No. 06/12 & ID No. 64/19 Page 343 of 402 State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 this case. To the suggestion that it was last sanctioned in March 2003, he stated that he does not remember. He did not know whether the banking credit limit sanctioned on 10.03.2003 against PC limit of Rs. 1.50 crore was not being released by the branch in March 2003. He did not remember whether Mr. V.K. Sharma, Senior Regional Manager had received a complaint from the borrower that the Branch was not releasing the enhanced packing credit limit or that on the said complaint, A8 K.B. Relan was called to the Regional Office to explain as to why the limit was not being released or that A8 K.B. Relan was advised to take alternate security by way of equitable mortgage of property of Sh. Anil Kumar Jaggi and release the limit.
463. The aforesaid testimony of this witness highlights that there was sufficient monitoring of the branch by the Regional Office. In each and every time whenever clarifications were required by the Regional Office with regard to the loan proposals, it raised queries upon the Branch and the Branch had also responded to the same. Regional Office used to gather information regarding running of the account from the branch. Review sheets were periodically submitted by the branch to the regional office. Regular visits by officers of Regional Office to the branch were also carried out and they used to check everything about the working of the branch. All it shows that there was a system CC No. 06/12 & ID No. 64/19 Page 344 of 402 State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 of check and balance and it was not like that the Regional Office used to sanction the loan proposals sent and recommended by the Branch blindly without taking into consideration the shortcomings that might have cropped while dealing the proposals.
464. Another bank witness whose testimony has been heavily relied upon by the Ld. Prosecutor to incriminate A8 K.B. Relan in the commission of offence is PW42 Sh. V.K. Sharma, the then Senior Regional Manager.
465. PW42 Sh. V.K. Sharma was posted as Senior Regional Manager at North Region, Delhi during the relevant period. During his posting in North Delhi Regional Office of PNB from April 2002 to July 2003, he had dealt with proposals for enhancement of loan in respect of M/s Gaaman Global Exports. These proposals were sent by New Rohtak Road Branch of the Bank where K.B. Relan was the Branch Manager. He had sanctioned the enhancement of cash credit facilities and other facilities to M/s Gaaman Global Exports from time to time and the last sanction granted by him to the borrower firm was on 10.03.2003 with regard to Packing Credit Limit of Rs. 1.5 crore. In his examinationinchief, he has basically levelled following allegations against A8 K.B. Relan, the then Branch Manager: i. That the Branch Manager is responsible to ensure the identity of CC No. 06/12 & ID No. 64/19 Page 345 of 402 State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 borrowers and guarantors. The genuineness of the collateral property is also ensured by the Branch Manager and Second Incharge. The identity of the borrowers and guarantors is verified by identity documents like ration card, passport, driving license etc. Such documents are verified from the authorities issuing the documents. On spot verification by going to the property and asking the local market or the nearby residents is also carried out.
ii. When any property is offered as collateral security, intimation is sent to the owner of the said property regarding its mortgage. Such intimation is sent through Registered Post. Sending Acknowledgement letter by hand was against the rules.
iii. In Statement of Account Ex.PW32/E of M/s Gaaman Global Exports, there are many entries showing withdrawal of cash in lakhs. These would amount to a total of about Rs.40.50/ lakhs. There have also been frequent overdrawings in this account which have been allowed by the Branch Manager.
iv. There has been devolvment of LCs on many occasions and the Branch Manager had not sought the permission for opening fresh LCs. CC No. 06/12 & ID No. 64/19 Page 346 of 402
State vs. Arvind Johri. & Ors Judgment dt.18.10.2022
466. So far as the first allegation that identity of the guarantors and genuineness of the collateral properties is to be ensured by the branch manager from the issuing authority is concerned, the witness in his crossexamination was suggested by Ld. Counsel for A8 that there was no circular or guidelines to the effect that the Branch Officer had to go to the issuing authority to identify documents, to which he categorically admitted that there was no such guidelines.
467. To the allegation that acknowledgement of the receipt of title deeds of the property mortgaged with the bank can be sent to the owner of the property either by registered post or it can be delivered in person, he stated that generaly such an acknowledgement is sent by registered post to ensure that the person who has mortgaged the property is genuine person. He could not say whether it can also be sent in person. He admitted that he may have stated under Section 161 Cr.P.C. after seeing the books of instructions that the Branch Manager may send an acknowledgement having received the title deeds for mortgaging the property on the bank prescribed performa by registered post or through in person.
468. With regard to allegation of cash withdrawals and overdrawings as shown in Statement of Account Ex.PW32/E, the same has already been CC No. 06/12 & ID No. 64/19 Page 347 of 402 State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 discussed.
469. So far as the allegation of devolvement of LCs on many occasions is concerned, though PW42 Sh. V.K. Sharma deposed that when any document which is discounted is returned unpaid, the matter is reported to the Regional Office provided the amount is more than Rs.5000/. To his knowledge, in the present case, no such report was made to the Regional Office. Since, such return of discounted document is an adverse feature, it should be reported in any proposal for enhancement of the limit. He also stated that the cheque discounted on 14.12.2001, 22.12.2001 and 25.01.2002 were returned unpaid and it is called devolvement of LC. He further stated after seeing Ex.PW32/E that on 26.02.2002, an amount of Rs. 20,46,531/ was debited on 30.04.2003, an amount of Rs.3,99,913/ was debited on 22.05.2003, an amount of Rs. 5,99,450/ was debited and these related to LCs so amounted to devolvement of LCs.
470. However, in his crossexamination by Ld. Counsel for A8 he admitted that as per letter dated 11.09.2002 Ex.PW29/DA, it was opined that where the payment has been recovered by bank within 1014 days period, it would not amount to devolvement of LC. To the suggestion that his statement that the clean DDs which had been returned bank unpaid were not reported to the Regional Office is based on speculations as he was not the Regional CC No. 06/12 & ID No. 64/19 Page 348 of 402 State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 Manager at that time, he stated that in the proposal for enhancement of Adhoc limit put up to him, it was not mentioned that any clean DDs were returned unpaid in the past. In Appendix C to the document Ex. PW31/C (Colly), there is a mention that a cheque for Rs. 2,50,000/ was returned unpaid but regularized on the next date. He admitted that whenever any proposal for enhancement limit is sent by the branch, all the documents as per the list of enclosures mentioned at page 2 of Ex. PW31/B are sent by the branch to the Regional Office.
471. The witness further admitted that there is a quarterly review sheet submitted by the branch to the Sanctioning Authority with regard to the running of the account. This is in addition to the regular yearly inspection done by the Inspection Department of the head office. There is a system of concurrent audit wherein an Auditor is posted by the Inspection Department, Head Office in the branch to carry out day to day audit of all the loan accounts and other working of the branch. He did not remember whether there was any such Auditor posted in New Rohtak Road Branch or not.
472. The above testimony shows that the quarterly review sheets were submitted by the branch to the sanctioning authority. It also shows that there was a concurrent auditor in the branch to audit the loan account of the borrower on day to day basis and also on the working of the branch, though PW42 feigned CC No. 06/12 & ID No. 64/19 Page 349 of 402 State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 ignorance stating that he did not remember whether there was any such auditor posted in New Rohtak Road Branch of Punjab National Bank. But there is no dispute that there was a concurrent auditor in the branch as admitted by PW12 Sh. R.M. Sachdeva during his crossexamination. PW12 has also mentioned the name of Concurrent Auditor as Sh. M.L. Diwan. PW42 during his cross examination had further admitted that in addition to above, either the Chief Manager or Senior Regional manager used to visit the branch on quarterly basis. Apart from the above, he could not tell about any other system or mode of monitoring the loan accounts in vogue at that time. To the suggestion that the Second Incharge of a branch was under obligation to record any deviation in the loan account and report to the Regional Office, he stated that there was a system wherein in any such deviation was required to be recorded in a register kept in the branch which could be seen by the Inspecting Officers. He further admitted that a plethora of returns submitted by the branch to the Regional Office which also have a controlling aspect. Some of these returns are referred to as crucial returns in banking communications. All such returns are examined at the regional office. It is presumed that the statements signed by Branch Manager are correct.
473. To the suggestion that Statements sent by Branch Manager, reports CC No. 06/12 & ID No. 64/19 Page 350 of 402 State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 of the concurrent auditor and report of the inspecting officers can be compared to find out if there is any wrong reporting by the Branch Manager, PW42 stated that generally, it is not done because the Inspecting Officer specifically write about wrong reporting, if any. PW42 admitted that if any wrong report had been brought to his notice, he would not have accorded sanction. He admitted that wrong reporting would include concealment of facts. He denied the suggestion that on 03.08.2002, he had verbally conveyed to the branch to release 20% over an above the existing limit to M/s Gaaman Global Exports or that such verbal communication was made without any recommendation from the Branch Manager i.e. accused No. 8 K.B. Relan. He further denied the suggestion that on 13.08.2002, he had accorded sanction for Rs. 35 lakhs over and above the existing limits without recommendation from accused no. 8 K.B. Relan. However, when he was shown office note dated 03.08.2002 Ex.PW31/Z, he admitted that vide his endorsement at point E on note dated 03.08.2002 Ex.PW31/Z, he had approved 20% adhoc limit of Rs. 65 lakhs within drawing powers for three months. He also admitted that vide proposal dated 02.08.2002 Ex. PW31/Y, the branch had recommended for sanction of adhoc limit of Rs. 35 lakhs. He was again shown note dated 13.08.2002 Ex.PW31/BB and he admitted that vide his endorsement at point E on office note dated 13.08.2002 CC No. 06/12 & ID No. 64/19 Page 351 of 402 State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 Ex.PW31/BB, he had approved ad hoc limit of Rs.35 lakhs over and above the limit of Rs. 65 lakhs, then subsisting.
474. It shows that the Regional Office vide Ex. PW31/Y dated 02.08.2002 had received proposal for grant of ad hoc limit of Rs. 35 lakhs. The said proposal was processed vide Ex. PW31/Z and was put up before PW42 and he accorded sanction of 20% of Rs. 65 lakhs for three months on 03.08.2002. A proposal for sanction of Rs. 150 lakhs vide Ex.PW31/DD was received by Regional Office. Thereafter, PW42 sanctioned ad hoc limit of Rs. 35 lakhs vide Ex. PW31/DD on 13.08.2002 pending consideration of the above proposal.
475. During crossexamination, the witness further admitted that Sh.R.M. Sachdeva was posted in the branch but whether he was second man (next to the incumbent incharge) or not, he does not know. He does not have any knowledge whether the second man (next to the incumbent incharge) was supposed to record the deviations, if any, found by him. He further admitted that if any wrong report had been brought to his notice, he would not have accorded sanction. He admitted that wrong reporting would include concealment of facts. He further categorically stated that when any proposal for enhancement of limit comes to the Regional office, the sanctioning authority ensures that the earlier sanction, running of account etc. is in order, he stated that the Regional CC No. 06/12 & ID No. 64/19 Page 352 of 402 State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 Office depends on the report submitted by Branch Manager about the satisfactory conduct of the account and compliance of terms and condition as per bank rules. He categorically stated that all the limits in this case were within the bank guidelines. He further categorically stated that Regional Manager is not bound by the recommendations of the Branch Manager and the sanctioning authority can differ or reject the recommendations of its subordinate.
476. The aforesaid analysis of testimony of PW42 would reveal that he had sanctioned all the limits after fully satisfying with the recommendations. Though he has levelled many allegations against Branch Manager but when he was confronted with the documents, he admitted that the same were as per the banking guidelines and that there was system of inspection, concurrent auditor visit by Regional Office to the branch and monitoring through quarterly review sheets, deviations if any recorded in deviation registration by second man of the Branch. Therefore, it cannot be said that from the testimony of PW42 prosecution has been able to prove the case against A8 K.B. Relan.
477. Let us now discuss the testimony of PW44 Sh. R.P. Bansal to find out whether he has been able to prove the allegations against A8 K.B. Relan.
478. PW44 Sh. R.P. Bansal was posted as Manager in New Rohtak Road Branch of PNB from June 2001 till December 2001 when A8 K.B. Relan CC No. 06/12 & ID No. 64/19 Page 353 of 402 State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 was the Branch Manager and he had dealt with the initial proposal of M/s Gaaman Global Exports for grant of CC(H) limit of Rs.20 lakhs. He deposed that the Branch Manager had assigned him the duties of loan Incharge. He had handled the loan proposal in respect of M/s Gaaman Global Exports. The file in this case was given to him by accused K.B. Relan on 05.09.2001. He was called by A8 K.B. Relan to his chamber where one more person who was introduced as Mr. Arvind Johri, CEO of M/s Gaaman Global Exports was also sitting with him (K.B.Relan). The Branch Manager asked him to process the file of M/s Gaaman Global Exports and recommend maximum loan for cash credit facilities immediately. He went through the file and suggested that many papers were required. He deposed that there was no loan application form as prescribed by the bank. However, the said deposition of the witness is contrary to the record. Application dated 09.08.2001 Ex.PW12/M on behalf of firm M/s Gaaman Global Exports duly signed by its partners A2 Mahan Mukherjee and A3 Rajendra S. Raikwar requesting for grant of Cash Credit (Hypothecation) limit of Rs.20 lakhs is on record.
479. The witness has further deposed that the partnership deed was unregistered and the details of asset/liability of M/s Gaaman Global Exports and its partners were not there. It seems that the witness wants to say that since the CC No. 06/12 & ID No. 64/19 Page 354 of 402 State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 partnership firm M/s Gaaman Global Exports at that time was unregistered, loan could not have been granted to it. However, it has not been shown by the prosecution that a partnership firm was mandatorily required to be duly registered before grant of loan facilities to it. Of course, M/s Gaaman Global Exports was an unregistered partnership firm at the time of initial loan and it was got registered in the year 2002, but there was no bar on the Bank to grant loan to an unregistered partnership firm.
480. The witness has further deposed that A8 K.B. Relan and Arvind Johri were shortly joined by one more person who was introduced as Mahan Mukherjee, partner of the firm and at about 2.30 PM, A8 K.B. Relan called him again to his chamber and asked him to accompany him (K.B. Relan) to the party's godown. Accordingly, he accompanied Arvind Johri, Mahan Mukherjee and K.B. Relan to the party's godown at G.T. Karnal Road and while returning Mr. Johri asked them to visit the property in Old Gupta Colony which was to be mortgaged with the bank as collateral security. They went to the second floor of the bank (wrongly typed as 'bank' and it should have been 'property') where Mr. Johri introduced him to an old lady as Smt. Ram Rakhi whom he (Arvidn Johri) was calling Mata Ji and told that the property belongs to her. The witness raised certain queries from the old lady to which she asked him to talk to her son CC No. 06/12 & ID No. 64/19 Page 355 of 402 State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 pointing towards one Joginder Singh as her son. This was the only sentence she uttered in response to his queries. Immediately, accused K.B. Relan told him that reply to all his questions/queries would be available in the valuation report and legal report when he would go back to the branch.
481. However, the assertion made by PW44 Sh. R.P. Bansal that A8 K.B. Relan accompanied him to the property of Smt. Ram Rakhi for spot inspection is again contrary to the record. PW44 had visited the property on 05.09.2001 and made a process note dated 06.09.2001 Ex. PW12/N. In the said process note, no such fact that K.B. Relan had accompanied him to the property of Smt. Ram Rakhi on 05.09.2001 is mentioned. Therefore, question of intervention of K.B. Relan when he (the witness) was making queries from Smt.Ram Rakhi saying that all his questions/queries would be available in valuation report and legal report lying in the bank does not arise.
482. PW44 has further deposed that on the next day, he was again called by accused K.B. Relan in his chamber and he asked him about the process note. He told K.B. Relan that he had not processed the same since basic information was not available in the file. He insisted for copy of registered partnership deed. K.B. Relan ordered him to comply with his direction and stated that copy of the registered partnership deed was not necessary. K.B. Relan CC No. 06/12 & ID No. 64/19 Page 356 of 402 State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 told him to do whatever he was telling him. K.B. Relan also told him not to play smart otherwise, he would be shunted out from the branch. He further deposed that accused K.B. Relan ordered him to make a recommendatory note for Rs.30 lakhs as CC account immediately. He replied that his power was only Rs. 20 lakhs. He also told him that this was a new party for the bank as well as branch and that they should proceed only for Rs.5 to Rs. 10 lakhs as a cautious banker and they could increase the limit later on after observing the conduct of the account. The Branch Manager i.e. accused K.B. Relan became very annoyed and told him to do whatever he orders him to do. He again insisted that recommendation for Rs. 30 lakhs was not possible. He further stated that after going back to his seat in the basement, he prepared process note. In his note, he mentioned that guarantor whose property is to be mortgaged was 74 years old and thus of a higher age. He wanted to write more but thought that the Branch Manager would be annoyed and will edit the same. He took the note to accused K.B. Relan who sanctioned the loan.
483. During his crossexamination by Ld. Counsel for A8, the witness has categorically stated that the observations made in Ex.PW12/N were based on the Balance sheet submitted by the party. In the said note, the permissible bank finance has been stated as 20 percent of the sales which are Rs. 55.85 lakhs. This CC No. 06/12 & ID No. 64/19 Page 357 of 402 State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 statement of the witness contradicts his own deposition made in examinationin chief that the loan could not have been recommended for Rs. 30 lakhs.
484. The witness in his further crossexamination has stated that there were many things required to be mentioned in the note but due to pressure of the Branch Manager i.e. accused K.B. Relan, he could not do that. He has pointed out the irregularities while dealing with the initial loan application of the firm M/s Gaaman Global Exports by A8 K.B. Relan and stated that in this case, shortcut method was adopted; the godown was visited first and the loan application was submitted later on; loan is never given to an unregistered partnership firm, but in this case, at the time of grant of loan, the partnership firm was unregistered; he was told to immediately recommend the loan and that he may write about the unregistered partnership firm; the identification of the borrower and the guarantor is to be independently done by the loan officer, however in this case, it was done in the presence of accused K.B. Relan, Branch Manager; the past track record of the proposed borrower is also to be verified, but in this case, on the first day itself the Branch Manager had told that the party had to be given a loan of Rs. 30 lakh, since he was his close friend and a neighbour, even before any application for loan was submitted. He stated that such a shortcut method is in violation of the Bank Guidelines and putting CC No. 06/12 & ID No. 64/19 Page 358 of 402 State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 pressure on the Bank Official is also violation of the Guidelines and the aforesaid facts reflected personal interest of the Branch Incharge i.e. accused K.B. Relan.
485. However, all these allegations of the witness are demolished when he categorically stated in his crossexamination conducted by Ld. Counsel for A8 that whatever is written in the note Ex.PW12/N is correct.
486. In his further crossexamination, PW44 stated that he was given tabular performa vide which clarifications were sought from him regarding the deviations made and in reply to the same he had not mentioned about the pressure allegedly put on him by the Branch Manager. Though he tried to give explanation for the same when he stated that his reply was got edited by Senior Officers and he was told not to write about the pressure put on him by any Senior Officers because the said Senior Officers said that otherwise he would also be writing about the pressure put by them. However, he did not remember the names of the Senior Officers. He stated that one of them was Mr. Marwah but he categorically stated that he has not made any complaint in this regard in writing. Though he again made an explanation for not making a complaint against the senior officers and stated that since any such complaint was required to be routed through the Branch Manager, he did not make any complaint. But CC No. 06/12 & ID No. 64/19 Page 359 of 402 State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 this explanation does not appear to be valid justification.
487. He also stated in his crossexamination that in the Bank, there is a procedure to make an entry in the deviation register, if there is any deviation. However, PW44 has not made any deviation in the deviation register despite the fact that he was Loan Incharge. If he had noted so many shortcomings, nothing prevented him from making the entries in the said deviation register.
488. He further stated in his crossexamination that he had prepared confidential reports of the parties in this case which are part of loan processing. He was shown in file Ex. PW31/A (Colly), copies of the confidential reports given by him in respect of M/s Gaaman Global Exports, Rajendra S. Raikwar, Mahan Mukherjee and Smt. Ram Rakhi. He stated that the said confidential reports were based on the documents provided to him by the Branch Manager. It is not written in the reports that the information mentioned therein was supplied by the Branch Manager. He voluntarily stated that the loan documents are received by the Branch Manager. He admitted that whatever is written in the confidential report of Smt. Ram Rakhi was based on the valuation report dated 14.07.2001 of Sh. V.D. Gandotra, Govt. Approved Valuer. With respect to Smt. Ram Rakhi, he had written the experience and dealings as satisfactory and reputation as good because this is the least he could have written. He admitted CC No. 06/12 & ID No. 64/19 Page 360 of 402 State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 that when he went for the spot inspection, the lady who met him there was the same lady who had signed on the guarantee documents. He admitted that when the loan proposal was processed, the nonencumbrance and verification report of the government approved advocate was available. He was shown indemnity bond Ex. PW5/C and he admitted that Ex.PW5/C bears signature of accused K.B. Relan at point B. He voluntarily stated that it was not required for the purpose of loan. He could not say whether advocate had advised or given the performa for taking the aforesaid indemnity bond. He has been shown letter dated 14.07.2001 Ex. PW12/BB of Sh. Krishan Kumar Sharma, Advocate addressed to the Branch Manager, New Rohtak Branch, wherein he had advised, inter alia, that Smt. Ram Rakhi should deposit indemnity bond in favour of the bank. He stated that this letter was available when he prepared the note dated 06.09.2001.
489. The aforesaid statements of PW44 highlights that PW44 visited the property, met so called Smt. Ram Rakhi and after that prepared the process note Ex.PW12/N. He has identified the same lady in the bank who had met him at the time of his visit to the house of Smt. Ram Rakhi. Though he has alleged that K.B. Relan has introduced the account of the firm but same is contrary to the record as it has already been held that account opening form Ex.PW12/I was CC No. 06/12 & ID No. 64/19 Page 361 of 402 State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 not introduced by A8 K.B.Relan but he had only verified the address of partners of the firm. He alleged that verification of signature of Smt. Ram Rakhi on indemnity bond has been done by A8 but the same is also contrary to the record. Indemnity bond Ex.PW5/C of purported Smt. Ram Rakhi would show that the same had been witnessed by Raja Ram Sharma and one more person and K.B. Relan was indemnifiee on behalf of the bank. He alleged that the indemnity bond of Smt. Ram Rakhi was not required to be taken but the same had been taken by K.B. Relan which was not a practice. However, the said indemnity bond was taken on the specific suggestion of the panel advocate Sh. K.K. Sharma vide letter dated 14.07.2001 Ex. PW12/BB which was also available at the time of preparation of note Ex.PW12/N by this witness.
490. PW44 has also deposed in his examinationinchief that he remained on the seat of Loan Incharge for about 15 more days and then he was shifted from there and was made Hall Incharge by the order of accused K.B. Relan. He further deposed that the behaviour of accused K.B. Relan towards him was very rough. He further deposed that Sh. Anil Aggarwal from the Regional Office used to visit the branch after 5.00 PM and used to sit with accused K.B. Relan. He further deposed that the signatures of purported Smt. Ram Rakhi has been identified by accused K.B. Relan. Normally the second CC No. 06/12 & ID No. 64/19 Page 362 of 402 State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 Incharge of the branch or the loan officer verifies the signatures of the guarantor. In this case, the Branch Manager had himself verified the signatures in order to conceal the identity of the indemnifier and to prevent the second incharge from enquiring into the further details. He further deposed that the documentation in this case was done before accused K.B. Relan in his chamber although it should have been done before him in the loan department.
491. PW44 appears to be a disgruntled person as can be discerned from the fact that he had alleged against A10 Anil Aggarwal in his chief examination that Anil Aggarwal used to sit with accused K.B. Relan after office hours, but in the crossexamination he admitted that normally the office hours were 10.am to 5.00 pm. But they used to leave the office after completion of their work. It could be at 6.00 pm or 7.00 pm. He admitted that a bank officer is considered to be an employee of the bank for 24 hours. He further admitted that a branch of the bank is under the Regional office. He admitted that on direction of Sr. Regional Manager, any officer of the Regional Office has to visit the branch. If any officer of the Regional Officer comes to the branch, he would meet the Branch Manager.
492. If that was the case, then it is not understandable as to how he has cast aspersion on A10 Anil Aggarwal and could see some malafide in visiting CC No. 06/12 & ID No. 64/19 Page 363 of 402 State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 Anil Aggarwal who was Senior Manager (credit) to the branch even after 5'O clock and sitting with branch manager K.B. Relan. Further, PW44 admitted that a Departmental Enquiry was conducted against him in this case wherein he was awarded a punishment. He voluntarily stated that he was assured by the Deputy General Manager of Zonal Office that the punishment of withholding of one increment for one year would be later on withdrawn on his appeal and that the punishment was being awarded to him in order to prevent him from giving statement against bank officials during investigation. He was also told that if he was asked to make a statement during investigation, he should say that he should be spared since he was himself chargesheeted. He was also told that after the case is closed, he may file an appeal and his punishment would be withdrawn.
493. As such, it is evident that PW44 was subjected to the departmental enquiry and he was awarded a punishment in the said departmental enquiry. Though the explanation given by him in voluntarily statement is incomprehensible and one fails to understand that as to why the DGM would first award punishment to him and later on withdraw the punishment in the appeal to prevent him from giving statement against bank official during investigation. If that had been the case, then the witness should not have given the statement against Branch Manager K.B. Relan, Anil Aggarwal and other CC No. 06/12 & ID No. 64/19 Page 364 of 402 State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 officers. It appears that since he was awarded punishment, he had grudge against the bank officers.
494. Though he claimed that the entire loan documentation work was done in the chamber of K.B. Relan but the said fact is controverted by PW23 Sh. Ashok Ramchandani who was posted as clerk in the bank when he categorically stated that after opening the account, partners of M/s Gaaman Global Exports started approaching the Loans department which was located in the basement for loan. He further went on to say that the papers required for loan were suggested to them by the Loan Incharge and accordingly those documents were submitted to the bank. He further stated that entire documentation regarding the subject loan was initially done in the basement of the branch in September 2001 when the limit was sanctioned. He further categorically stated that at that time Sh. R.P. Bansal was the manager (loan). He further stated that he had filled up the documents which are confidential report of the parties and the firm at the instance of incharge (loan) at the relevant time.
495. All the allegations made by PW44 against branch manager K.B. Relan that he flouted the banking norms and compelled him to make recommendatory note falls apart when he categorically admitted that he had done his duties according to the guidelines of the bank. CC No. 06/12 & ID No. 64/19 Page 365 of 402
State vs. Arvind Johri. & Ors Judgment dt.18.10.2022
496. In view of the aforesaid discussions, I do not find any substance in the argument of Ld. Prosecutor that PW44 R.P. Bansal has proved that A8 K.B. Relan had flouted the banking rules and norms while dealing with the initial loan application of M/s Gaaman Global Exports and sanctioned the same in favour of the firm in conspiracy with the partners of the firm or that he exerted pressure upon his subordinates to make favorable notes in favour of the borrower firm.
497. It is relevant here to discuss the contentions raised by Ld. Counsel for A8.
498. Ld. Defence Counsel has vehemently contended that investigating officers in this case has done lopsided investigation. He submitted that both the investigating officers did not go through the bank circulars, books of instructions and guidelines and prevalent practices and if the investigation had been carried out in the said directions, A8 would not have been implicated as an accused in the present case. He further submitted that investigating officers have completely misunderstood the role assigned to A8 as an Incharge/Incumbent of the Branch and failed to understand that it was a team work and each member of the team had his respective assigned role in processing, documentation, recommending, sanctioning, follow up the loan proposals of the borrower firm CC No. 06/12 & ID No. 64/19 Page 366 of 402 State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 and was performing his respective role/responsibility; and the entire burden cannot be shifted upon A8 K.B. Relan . Ld. Counsel has also referred to the ICD Circular No. 24/13 on Staff Accountability Ex.PW37/D3, which interalia, provides as under: "The objective of staff accountability policy is to ensure protection of bonafide actions of the officials taken as per the rules, guidelines and policies of the bank and to determine the accountability of the staff who indulge in motivated/ reckless decision making and/or flagrantly violate the rules and regulations of the bank.
498.1. It further provides that : "No accountability of the officials shall lie in cases where such official is required to rely upon the report of an outside agency and if any defect/s is/are noticed. Detected later on, pertaining to issues covered in their reports." Here it may be mentioned that such outside agency for accepting the property as security by way of mortgage, is advocate, and valuer".
498.2. Further, in para 4.2.4 it states that "The bank is assigning the work relating to NEC, Valuation reports, IT returns verification, due diligence of customers, stock/assets verifications etc., to outside agencies such as CC No. 06/12 & ID No. 64/19 Page 367 of 402 State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 Advocates, Architects/ Valuers, Chartered Accountants, Lenders' Engineers, Customer Point Verification Agency (CPVA) etc., who are on the approved panel of bank. The reports tendered by these agencies are accepted and/or stipulations/conditions, if any, are complied with, no accountability of the officials shall lie in such cases if any defects are noticed/detected later on, pertaining to issues covered in their reports.
499. Ld. Defence Counsel also referred to Inspection and Control Circular No. 32/99 Mark DX1 to buttress his argument that the banking is a team work and the Branch Head cannot be alone made liable for any irregularities or lapses in the conduct of account of the party and the other staff is equally responsible along with the Branch Manager. The said circular provides that : "Incumbent Incharge of a branch has overall responsibility for enforcing Banks systems and procedures but at the same time the responsibility also rests with other staff members like Sr. Managers, Managers, Asstt. Managers, Officers, Special Assistants and even members of clerical staff to ensure enforcement of bank's systems and procedures".
499.1. Para 5 further provides that: "The person (s) secondincommand at branches are primarily CC No. 06/12 & ID No. 64/19 Page 368 of 402 State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 responsible for informing HO/ZO/RO whenever they find that practices detrimental to the bank interest are being carried on at the branch and the controlling office is being deliberately kept in dark. The malpractices, if any, should be pointed out to the concerned incumbent incharge, in writing, at once and the matter should simultaneously be reported to regional/zonal manager and head office by a confidential letter or telegram as may be expedient. Failure to do so on the part of any officer shall make him personally responsible for any losses that the bank might suffer and would invite disciplinary action as may be deem fit by the authority. These guidelines equally apply to the concerned special assistants".
500. Ld. Defence counsel has submitted that since in the present case, A8 K.B. Relan had relied upon the reports of the advocate on the panel of the bank and the government approved valuer with regard to genuineness of the property documents and the guarantors, therefore A8 K.B. Relan alone is not liable if the title documents of the properties have turned out to be forged later on.
501. In view of the aforesaid submissions of Ld. Defence Counsel, the testimony of both the investigating officers are required to be discussed.
502. PW46 Sh. B.S. Bisht is the initial investigating officer of the case CC No. 06/12 & ID No. 64/19 Page 369 of 402 State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 to whom the FIR was entrusted for investigation. He has recorded statement of various witnesses, seized relevant documents and took the specimen signatures of accused persons and other persons.
503. During his crossexamination by Ld. Counsel for A8, PW46 stated that he did not remember whether he had obtained any circular regarding the procedure for sanction of loan from the bank. He voluntarily stated that he had examined the witnesses from the bank regarding the procedure for sanction of loan. He admitted that property documents are verified by a lawyer who is on the panel of the bank but he did not remember that the lawyer of the bank had examined the property as well as its documents and thereafter had given the report on the basis of which loan was sanctioned. He did not remember of examining Sh. K.K. Sharma, Advocate who had given the report regarding the correctness of the property documents and of visiting the property. Though he admitted that a valuation report from the approved valuer is obtained by the bank prior to sanction of loan, but he did not remember whether in the present case bank had taken a valuation report or not. He did not remember whether he had recorded the statement of the valuer Sh. V.D. Gandotra or not. He did not remember whether bank official who was Incharge of Loans Department had visited the property No. 208, at Old Gupta Colony, Vijay Nagar, Delhi and he CC No. 06/12 & ID No. 64/19 Page 370 of 402 State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 had recorded his statement. Though he stated that the deviation that he noted during course of the investigation was that owner of the property namely Smt.Ram Rakhi was not identified and even otherwise she had expired in the year 1990 and was not alive at the time of granting of loan in the year 2002 2003 but he did not remember as to on what basis he had come to the conclusion that photograph on the property documents and documents of identification was not that of Smt. Ram Rakhi. He did not remember whether he had met any children of Smt. Ram Rakhi at the property No. 208, Old Gupta Colony, Vijay Nagar, Delhi. He did not remember whether he had met Smt. Neelam Gulati, daughterinlaw of Smt. Ram Rakhi. He did not remember if the documents of identification of the lady who had presented herself as Smt. Ram Rakhi were verified by the bank officials or not.
504. PW46, the initial IO further stated that he did not remember whether he had taken statements of Advocates Sh. K.K. Sharma, Ms.Geeta Babbar, Sh.A.P.S. Ahluwalia, Sh. Rahul, an employee of the borrower who had accompanied the valuer to the property mortgaged with the bank. He did not remember if Sh. R.P. Bansal, the then Manager, Punjab National Bank, New Rohtak Road and Sh. R.M. Sachdeva also, the then Manager, Punjab National Bank, New Rohtak Road had noted any deviation in the deviation register in the CC No. 06/12 & ID No. 64/19 Page 371 of 402 State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 procedure followed in the loans in question in this case. He did not even remember if it was their duty to so record. He did not remember if they had given statement saying that there was no deviation observed by them. He did not remember if Sh. R.P. Bansal had got the loan documents executed qua the documents executed by Smt. Ram Rakhi and he had met the same lady when he visited the said property. He did not remember if Sh. R.M. Sachdeva had recommended enhancement of limit of the loan to the borrower on the day when accused K.B. Relan was on leave. He did not remember as to who used to check from time to time the stocks hypothecated to the bank by the borrowing party. He did not remember if Sh.R.M. Sachdeva was allowing withdrawals including cash withdrawal from the account of the borrowing party. He did not remember whether the Regional Office had enhanced the loan granted to the borrower from time to time. He did not remember whether during investigation he had investigated the functioning of the Regional Office of the bank. He could not tell that the Senior Regional Manager was the final authority to sanction the loan.
505. The aforesaid testimony of PW46 Sh. B.S. Bisht, the initial IO shows that he could not remember anything about the investigation carried out by him in the present case. He could not remember whether he had obtained any circular regarding procedure of sanction of loan, whether he had recorded the CC No. 06/12 & ID No. 64/19 Page 372 of 402 State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 statements of approved valuer, panel advocate and various other facts which were relevant to the case regarding functioning of the bank at Branch and Regional Level.
506. PW47 Sh. Satendra Singh is the second investigating officer of the case and this case was entrusted to him in the year 2005. During investigation carried out by him, he had also examined witnesses, obtained specimen signatures of accused persons and other witnesses and after completion of investigation filed the chargesheet.
507. During his crossexamination by Ld. Counsel for A8, he categorically stated that he had not investigated the zonal office and the Head office as to whether the loan sanctioned by the Regional Office was proper or not. He did not remember whether he had collected the banking guidelines for sanctioning of loan but he had examined the bank officials in this regard. He stated that Sh. Vinay Kapoor in his statement did not comment anything regarding the Regional Office but had made comments regarding the branch office. He further stated that Sh. Vinay Kapoor did not state that there was any lapse on the part of Regional Office in the enhancement of loan. He categorically stated that he did not examine the bank circulars and the instruction manual regarding verification of title deeds of security. He admitted CC No. 06/12 & ID No. 64/19 Page 373 of 402 State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 that in the present case accused K.B. Relan had taken the bank lawyer's report as well as valuation report regarding the property which was given as security for sanction of loan. He did not remember if there was any concurrent auditor appointed in the branch for day to day audit of the branch. He did not remember having seen any report of concurrent auditor. He did not remember if he had seen the circulars Ex.PW47/DAX1 (Colly) & Ex.PW47/DAX2 (Colly). He admitted that the advocates were to see whether the title deeds being mortgaged with the bank were registered with registering authority or not. He admitted that based upon the advocates' report about the title deeds of the properties, the same were accepted by the bank in mortgage. He did not remember of having seen staff accountability circular of PNB. He did not consider it necessary to even inquire about staff accountability policy/procedure of the bank as his investigation was focused on criminal angle. He admitted that report of approved valuer in this case was found to be correct. He admitted that as per the banking procedure, the valuer has to visit the property for giving the valuation report.
508. The aforesaid testimony of PW47 highlights that though he was investigating a bank fraud case but he even did not bother to look into the banking guidelines and procedure and the said aspect was totally ignored by CC No. 06/12 & ID No. 64/19 Page 374 of 402 State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 him.
509. Both the investigating officers remained dependent upon the oral version of the statement of bank officials who had been part of the team involved in the processing and sanctioning of the loans at the branch & regional level, but they completely ignored the banking circulars and guidelines. They completely failed to appreciate the fact that the version of such bank officials may be not reliable and to corroborate their version the established guidelines, prevalent practices, circulars ought to have been taken into consideration. I find substance in the argument of Ld. Counsel for A8 that the investigation conducted by the IOs has remained lopsided. Even the statements of investigating officers show that during crossexamination they remained evasive in giving the answer to the questions by taking the shelter of their faded memory.
510. At this stage, it is apposite to deal with the contention of Ld. Counsel for A2 regarding investigation done in this case. Sh. Javed Hashmi, Ld. Counsel for A2 while taking a dig at the investigation carried out by the Investigating Officers in the instant case contended that it is a case of shoddy investigation and the investigating officers of the case did not carry out the proper investigation which is apparent from the fact that the prosecution could CC No. 06/12 & ID No. 64/19 Page 375 of 402 State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 not find out as to who was the impersonator of Smt. Ram Rakhi. Further, the investigating officers also failed to find out as to who forged the documents. He further contended that the investigating officers did not investigate the facts that how without the involvement of the family members of Smt. Ram Rakhi, the forged property documents of Smt.Ram Rakhi could have been procured. He submitted that investigating officers did not examine the role of Smt.Neelam Gulati who appears to have forged the documents. Ld. Defence Counsel has also contended that investigating officers also did not find out the stock position as to whether the same was sufficient to meet the outstanding liability of the firm and what happened to the stocks which was sent to Gandhi Dham, Gujarat.
511. It cannot be denied that there have been certain lapses on the part of the Investigating Officers as is also apparent from the record. Of course, the prosecution could not prove as to who was the maker /creator of the forged documents in this case. The prosecution also could not find out the lady who impersonated Smt. Ram Rakhi in the bank. But as noted above, Sh.K.K. Sharma, the advocate at the panel of the bank visited the property of Smt. Ram Rakhi physically and claimed to have met Smt. Ram Rakhi. The approved valuer also visited the property belonging to Smt. Ram Rakhi and inspected the same and gave its valuation. It shows that they had free access to the property. CC No. 06/12 & ID No. 64/19 Page 376 of 402
State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 Further, Sh. R.P. Bansal, Officer of the bank also visited the property, met some lady who was told to be Smt. Ram Rakhi, interacted with her and found that she was mortgaging the property for the loan facility to be granted in favour of the borrower firm. In these facts, it is apparent that someone was behind the curtain and mystery that who was the lady impersonating Smt. Ram Rakhi could not be unearthed by the IOs. However, question arises as to whether on account of aforesaid deficient investigation qua the impersonator of Smt. Ram Rakhi and forger of the documents any benefit would enure in favour of A2 Mahan Mukherjee. The answer lies in negative. As it has already been held that title documents of the properties which were mortgaged with the bank were found to be forged. It also stands established that the said fact was within the knowledge of partners of the firm or they had every reason to believe that the property documents were forged.
512. As record shows that there were certain lapses in the investigation of IO, but it may be noted that it is not that in each and every case if there were some lapses in the investigation, that would ipso facto would lead to the acquittal of the accused. The court may find certain flaws in the investigation but ultimately it is evidence on the judicial record which would be taken into consideration to see if charge for any offence is proved or not. Fault in the CC No. 06/12 & ID No. 64/19 Page 377 of 402 State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 investigation no doubt in many situations may create doubt about the very involvement of the accused and on that point benefit of doubt can certainly be given to the accused. However, where even if there are certain lapses in the investigation but at the same time there is sufficient evidence on record pointing towards the involvement of accused for commission of offence, in that situation merely pointing out of fault in the investigation would not automatically outweigh the convincing evidence on the record. Therefore, even if the prosecution could not lay hands on the impersonator of Smt. Ram Rakhi or could not prove as to who forged the documents, A2 Mahan Mukherjee cannot take any benefit out of this.
513. So far as the another contention of Ld. Defence Counsel regarding investigation on the point of stocks at Gandhi Dham is concerned, of course, there is no investigation on that point and charge sheet is silent. But it is also to be noted that A2 Mahan Mukherjee has also not led any evidence in his defence with regard to the stocks allegedly sent to Gandhi Dham against the PC limit. In view of the same, A2 Mahan Mukherjee cannot take benefit from the fact that there was no investigation with regard to the stocks which was sent to Gandhi Dham.
514. The prosecution has also alleged against A8 K.B. Relan that he CC No. 06/12 & ID No. 64/19 Page 378 of 402 State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 had received illegal gratification from the borrower firm for dealing the loan proposals of the firm favourably. This claim of the prosecution is based on the cash book which was seized from the office of M/s Gaaman Global Exports and contained entries showing payment made to staff of Punjab National Bank including A8 K.B. Relan, the Branch Manager.
515. The prosecution has sought to prove the cash book through PW7 Raja Ram Sharma. He has claimed to have prepared the cash book of M/s Gaaman Global Exports which is Ex.PW7/W. It contains the entries regarding payment made to A5 Anil Mahjajan of Rs. 17,70,000/, to A8 K.B. Relan of Rs. 1,00,100/ and to A10 Anil Aggarwal totaling to Rs. 1,50,000/. He deposed that apart from the said payments, certain big amount i.e. more than Rs. 20,00,00/was made to accused Anil Mahajan more than once but entires of the same were not made in the cash book as he was asked by Mahan Mukherjee and Arvind Joind not to make entries of the amount more than Rs. 2 lakhs.
516. In his crossexamination, he admitted that the Cash book Ex.PW7/W does not bear the name or stamp of M/s Gaaman Global Exports. He further admitted that the Cash book does not bear signature of any partner of M/s Gaaman Global Exports. He voluntarily stated that even though, he used to ask them to sign on the same, they were not signing. He stated that all the entries CC No. 06/12 & ID No. 64/19 Page 379 of 402 State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 in the cashbook have been made in pencil. He admitted that entries regarding cheques have also been made in the cashbook. He stated that the cash book was never sent to the Chartered Accountant. Audit of M/s Gaaman Global Exports was conducted once or twice. He admitted that no voucher in respect of entries made in the cash book Ex.PW7/W was being maintained. He had not maintained account with regard to the balance in hand. He admitted that cash book is written on financial year basis. He categorically stated that the cash book Ex.PW7/W has not been written on financial year basis. He admitted that entries made in the cash book are also reflected in the ledger. Voluntarily, he stated that in respect of Ex.PW7/W, there is no ledger. He stated that there is no entry showing cash in hand of Rs. 50,000/ or more as on 04.02.2002. On page 123 of the cash book Ex.PW7/W, he has shown expenses, however on page 122, there is no entry regarding receipt of money. There is no entry showing cash in hand of Rs. 50,000/ as on 06.02.2003. He admitted that accounts of M/s Gaaman Global Exports used to be audited. He had never sent the cash book Ex.PW7/W to the Auditor. He stated that he had not given a sum of Rs. 16,65,000/ to accused Anil Mahajan. Voluntarily, he stated that only an entry was got made from him. He does not remember the date when the above amount was given. All the entries are written in pencil. He had not made any entry corresponding to CC No. 06/12 & ID No. 64/19 Page 380 of 402 State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 the entries made in Ex.PW7/W in any Ledger or any other document of M/s Gaaman Global Exports. He admitted that in all business establishments, the cash book is maintained on yearly basis. Voluntarily, he stated that Ex.PW7/W has not been written properly on yearly basis and the cash in hand is not mentioned. He stated that there are no vouchers corresponding to the entries made in Ex.PW7/W. Voluntarily, he stated that he had made the entries as was told by Arvind Johri and Mahan Mukherjee.
517. If the aforesaid testimony of PW7 Raja Ram Sharma on the aspect of cash book is gone through, it cannot be said that the prosecution has been able to prove the same from any perspective. It has come that the said cash book is written in pencil by Raja Ram Sharma in which entries regarding payment to the bank officials have been mentioned. It is pertinent to note that Raja Ram Sharma did not say that he himself had made the payments to the bank officials against whom the entries have been made nor he claimed to be a witness to the so called payments. The cash book even does not bear the stamp and seal of the firm nor is signed by its partners. It has also come on record that the cash book is maintained year to year basis, but Ex.PW7/W is not maintained on year to year basis. In the cash book, only cash entries/transactions are made but Ex.PW7/W contained even the transactions through cheques. The cash book Ex.PW7/W is CC No. 06/12 & ID No. 64/19 Page 381 of 402 State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 not being audited. There is no supporting voucher and corresponding entries in the ledger book. Therefore, the cash book Ex.PW7/W cannot be said to be part of the accounts of the firm M/s Gaaman Global Exports. The prosecution has also not examined any other witness to prove the fact that the illegal gratification of which entries of payment have been reflected in the cash book was paid to the bank officials despite categorical admission of PW7 Raja Ram Sharma that he had not made the payment to the bank officials nor witnessed the payments of illegal gratification in respect of which he had made the entries in the cash book.
518. It is, therefore, cannot be said that the prosecution has been able to prove the cash book Ex.PW7/W allegedly containing the entries of the payment made to the bank officials as illegal gratification for granting favour in the processing and sanctioning of the loan proposals of the firm.
519. In summing up, it has come on record that A8 K.B. Relan before processing the loan proposals had obtained the panel advocate reports, approved valuer reports, spot verification reports as per the laid down banking guidelines, norms, practice and procedure. It also stands established that for the identity of the property owners, he had relied upon the ration cards or other registered public documents having photographs as per the banking guidelines and CC No. 06/12 & ID No. 64/19 Page 382 of 402 State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 practices. The prosecution has not faulted or took an exception to the reports of the panel advocates and govt. approved valuer nor questioned the identity of Smt. Ram Rakhi who was identified by PW44 R.P.Bansal. So far post sanction appraisal is concerned, K.B. Relan being the Branch Manager allowed the overdrawings which were either within his vested power or with the authorization of higher authority. It has come on record that from time to time as and when the overdrawings were availed by the party, he had sent the said actions for confirmation to the Regional office and the same were approved by the Regional Office in routine considering that the said overdrawings were need based. A8 K.B. Relan has also ensured the end use of the funds and facilities granted by the bank by getting the inspection of the stocks and book debts which were done by the bank officials periodically and as and when he noticed irregularities pursuant to the grant of sanction of PC limit, the same were reported to the Regional office. He took action in informing the Regional Office to verify the stocks at Gandhi Dham, Gujarat which was reported to have been shifted by the borrower. He himself had visited the Gandhi Dham, Gujarat to verify the stocks and when he did not find the same, he brought the said fact to the notice of the Regional Office.
520. There were cash withdrawals but same were reported to the CC No. 06/12 & ID No. 64/19 Page 383 of 402 State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 Regional Office and when Regional Office found the explanation to be satisfactory did not make any objection. It also stands established that prosecution has not gone through the bank circulars, guidelines and manuals to find out the prevalent practices in vogue and IOs remained dependent upon the oral version of the bank officials. The prosecution has failed to appreciate that the version of such bank officials may not be correct. The most cogent piece of information which were available in the form of banking rules, guidelines, circulars issued from time to time were ignored and the same were the best source to find out if the Branch Manager had flouted any banking norms and set procedure. The prosecution has also miserably failed to show that the Branch Manager obtained any illegal gratification from the partners of the firm or he was in league with alleged impersonators. There is no shred of evidence to connect A8 K. B. Relan with the criminal conspiracy directly or indirectly.
521. No doubt that one may notice that there were certain banking lapses at the time when the loan was being processed or even after the sanctioning of loan but after evaluating the entire evidence on record, I find that there is lack of evidence to show that A8 K.B. Relan in any manner was party to the conspiracy alongwith other accused persons. There may be a zeal on the part of Manager of the bank in branch for processing the loan as certain targets of loan used to be CC No. 06/12 & ID No. 64/19 Page 384 of 402 State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 given to the officer of the bank for increasing the business of bank and out of the zeal some procedural irregularities might have been committed, but one cannot conclude the involvement of A8 K.B. Relan in commission of offences in the absence of sufficient evidence and merely because that a fraud was committed with the bank by the other private persons / borrowers. Evidence on record does not show that A8 K.B. Relan has abused his official position as a public servant or misconducted in grant of initial loan to the firm or in processing the loan proposals later on or in post sanction appraisals. The prosecution, thus, has failed to prove its case against A8 K.B. Relan and consequently he is liable to be acquitted of all the offences charged with.
FINDINGS QUA A10 ANIL AGGARWAL
522. First, I shall deal with the issue with regard to sanction granted for prosecution of A10 Anil Aggarwal.
523. A10 Anil Aggarwal was a public servant at the time of filing the chargesheet and hence the prosecution has obtained the sanction under Section 19 of the PC Act, 1988 for prosecution of A10 Anil Aggarwal. In this regard, the prosecution has examined PW3 Sh. S.K. Roy who was posted as General Manager at Zonal Office, PNB, Meerut in 2007 and granted sanction for prosecution of A10 Anil Aggarwal who was working as Chief manager in CC No. 06/12 & ID No. 64/19 Page 385 of 402 State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 Branch New Mandi, Muzaffarnagar under Meeruit Zone at the time of grant of sanction. The witness was competent to remove Anil Aggarwal. He has proved the Sanction order dated 22.05.2007 as Ex.PW3/A bearing his signature at point A and initials at point A1.
524. In his crossexamination, PW3 Sh. S.K. Roy stated that at the time of grant of sanction, he went through the files sent by Head Office, which included the CBI investigation report, list of witnesses and some other documents which he does not remember now. He also stated that either GM or DGM of Head Office would have been his appointing authority. He also stated that in the bank there is system of discussion over telephone. During such telephonic conversation with Chief Vigilance officer he had told him that accused Anil Aggarwal who was working under him was a good officer. He admitted that he had issued letter of appreciation for his performance to Anil Aggarwal which is Ex.PW3/D1 to D5.
525. On the basis of the above statement of the witness, the Ld. Counsel for A10 has contended that since the performance of A10 Anil Aggarwal has remained outstanding for which he was issued letter of appreciation by the department, his sanction for persecution was erroneous. However, I do not find any merit in this contention. If an officer was granted certificate of appreciation, CC No. 06/12 & ID No. 64/19 Page 386 of 402 State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 it cannot be said that he cannot commit any wrong in future and only on this count, the sanction for prosecution cannot be termed as bad.
526. PW3 has categorically stated that he has gone through the files sent by Head Office which included the CBI investigation report, list of witness and other documents and it shows his application of mind while granting sanction for prosecution. No other circumstance has been brought by the Ld. Defence Counsel to show that PW3 had granted the sanction mechanically except the fact that at one point of time the department had issued certificate of appreciation to A10 Anil Aggarwal. Hence, sanction granted by PW3 for prosecution of A10 Anil Aggarwal is a valid sanction.
527. Now, I shall discuss the allegations levelled against A10 Anil Aggarwal in the chargesheet.
528. It is not in dispute that A10 Anil Aggarwal during the relevant time was posted as Senior Manager (Credit) at the Regional Office and dealt with various loan proposals of M/s Gaaman Global Exports sent by the Branch. Allegations against him are that he abused his position as a public servant and considered and dealt the loan proposal favourably and he had also obtained illegal gratification for the same from the borrower firm.
529. Perusal of the record shows that the loan proposals of borrower CC No. 06/12 & ID No. 64/19 Page 387 of 402 State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 firm M/s Gaaman Global Exports sent by Branch for enhancement of credit facilities were processed at the Regional Office by A10 Anil Aggarwal, Senior Manager (Credit) and Sh.Vinay Kapoor, Chief Manager. Sometimes, loan proposals were also processed by Sh.S.S. Chhabra along with A10 Anil Aggarwal and Sh. Vinay Kapoor. It also reveals that A10 Anil Aggarwal used to convey the queries raised by the Regional Office to the Branch and after receiving the response from the Branch, he put up the same before Senior Regional Manager in the form of status notes.
530. In this regard, testimony of PW31 Sh. Vinay Kapoor can be referred. He admitted during his crossexamination that Manager or Senior Manager posted in the Regional Office had no power to sanction loan to a customer. He further admitted that the cases of sanction of loan by the Senior Regional manager or Chief Manager at the Regional Office used to be conveyed to the Branch by the Manager or Senior Manager posted at Regional Office. He further admitted that in the present case, the Senior Regional Manager had sanctioned the loan according to the bank norms.
531. Similarly, PW37 Sh. S.S. Chhabra who was posted as Senior Manager PNB, North Delhi Circle, Rajendra Place and had dealt with the proposal of loan in respect of M/s Gaaman Global Exports being desk officer in CC No. 06/12 & ID No. 64/19 Page 388 of 402 State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 the Regional Office has admitted in his crossexamination that in the Regional Officer, there is a Desk Officer, who is either in ScaleI or Scale II who puts up file of any proposal to the Sr. Manager who in turn, sends the file to Chief Manager and the Chief Manager sends the file to the Sr. Regional manager for taking decision regarding the proposal of loan. In the Regional Office, the power to sanction any loan vests with either the Chief Manager or the Sr. Regional Manager. Officers below the rank of Chief Manager do not have such powers. He stated that when the proposal of loan in respect of M/s Gaaman Global Exports was received in the Regional Office, the due procedure for processing of the loan was followed.
532. PW42 Sh. V.K. Sharma, who was the Senior Regional Manager also stated in his crossexamination that North Delhi Regional Office was headed by a Senior Regional Manager i.e. him. There were 23 Chief Managers handling different sections. The sections were headed by Section Head of the rank of Senior Manager or Manager supported by other staff members. The proposals received from Branch Manager used to be first handled either by the Desk Officer who used to be in Scale II or Scale III or by an officer of Scale I, deputed for the said purpose. He admitted that the Desk Officer or the Senior Manager has no sanctioning powers in the Regional Office. He further admitted CC No. 06/12 & ID No. 64/19 Page 389 of 402 State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 that all the facilities granted to M/s Gaaman Global Exports were sanctioned by Senior Regional Manager. He voluntarily stated that Chief Manager could sanction facilities within his powers. He admitted that the facilities sanctioned in this case were as per the guidelines of the bank. He admitted that facilities sanctioned by him were to be conveyed to Branch Manager either by the Senior Manager or Manager Credit.
533. PW3 Sh. S.K. Rai, who was General Manager at Zonal Office and had granted sanction for prosecution of A10 Anil Aggarwasl and the competent authority to remove A10 Anil Aggarwal from the services has also stated that while working in the Regional Office, a Sr. Manager is not competent to sanction loan.
534. In view of the aforesaid statement of the prosecution witnesses, it is clear that sanctioning authority of all the loan proposals sent by the Branch of M/s Gaaman Global Exports for enhancement of limits was the Senior Regional Manager. It has also come on record that A10 Anil Aggarwal had only processed the file and his duty was to submit the loan proposals along with his recommendation to the senior authority for consideration. He did not have any authority to sanction the loan. It has also come on record that the status note recommending the proposal of the branch was put up jointly by A10 as Senior CC No. 06/12 & ID No. 64/19 Page 390 of 402 State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 Manager (Credit) and PW31 Sh. Vinay Kapoor, Chief Manager. It shows that it was a team work and A10 did not deal the loan proposals for enchantment of credit facilities single handedly. There is plethora of the communications exchanged between the Regional Office and the branch viz. Ex.PW12/III, Ex.PW12/MMM, Ex.PW12/PPP, Ex.PW31/EE, Ex.PW31/GG, Ex.PW31/II, Ex.PW31/JJ, Ex. PW31/UU, Ex. PW31/VV, Ex.PW31/TT, Ex. PW31/ZZ, Ex.PW31/D5 and Ex.PW31/AAA duly signed by A10 Anil Aggarwal which clearly shows that A10 Anil Aggarwal either was seeking clarifications from the branch of the queries raised by the Regional Office or conveying the sanction to the branch office.
535. It appears that the prosecution was swayed by the allegation that A10 abused his official position as a public servant because there were some entries shown in the cash book Ex.PW7/W against the name of A10 Anil Aggarwal as payment of illegal gratification. On the basis of said entries, the prosecution concluded that A10 Anil Aggarwal along with other bank official connived with the partners of the borrower firm and obtained illegal gratification for processing the loan proposals favourably in favour of the firm M/s Gaaman Global Exports. However, as it has already been held above that the prosecution has miserably failed to prove the cash book Ex.PW7/W and except the cash CC No. 06/12 & ID No. 64/19 Page 391 of 402 State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 book, the prosecution has not led any other evidence to show that any illegal gratification was paid to A10 Anil Aggarwal by the borrower firm. No prosecution witness has also deposed that A10 Anil Aggarwal was in connivance with the partners of the borrower firm. There is also no evidence that he has any connection with firm M/s Gaaman Global Exports apart from the cash book which the prosecution could not prove as per law. The prosecution has not attributed any act of A10 Anil Aggarwal to attract the criminal conspiracy as the prosecution has not led any evidence to show that he knew the other accused persons except the bank officials and there would be no question of meeting of mind.
536. In view of the aforesaid discussions, the prosecution has failed to prove its case against A10 Anil Aggarwal and he is liable to be acquitted of offences charged against him.
CRIMINAL CONSPIRACY
537. An agreement to commit an offence or an illegal act between two persons or more is the essence of conspiracy. Such an agreement is designated as criminal conspiracy. For appreciating the nuances of Section 120A r/w Section 120B(2) of IPC which makes criminal conspiracy punishable in law, it is necessary to deal with various terms, used in Section 120A IPC. CC No. 06/12 & ID No. 64/19 Page 392 of 402
State vs. Arvind Johri. & Ors Judgment dt.18.10.2022
538. The important words used in Section 120A are "agreement" between two or more persons, "offence" which is defined in Section 3(38) of the General Clauses Act, 1897 to mean any act or omission made punishable by any law for the time being in force. "Offence" is also defined in Section 2(n) of the Code of Criminal Procedure, to mean any act or omission made punishable by any law for the time being in force. Further the term used in Section 120A IPC is " illegal" which has been defined in Section 43 of IPC to the effect that the word "illegal" is applicable to everything which is an offence or which is prohibited by law or which furnishes ground for a civil action, and a person is said to be "legally bound to do" when it is illegal for him to omit. Further, Section 32 & 33 of IPC defines an "act" means a series of acts and also includes illegal omission..."
539. A combined reading of the above makes it clear that to attract a criminal liability for the offence of criminal conspiracy under Section 120A r/w Section 120B(2) of IPC, the following are to be proved: That two or more persons agreed to do, or cause to be done (1) an illegal act (which is an offence or which is prohibited by law, or which furnishes ground for a civil action, OR (2) an act which is not illegal but by illegal means (which is an offence or which is prohibited by law, or which furnishes ground for a civil action) CC No. 06/12 & ID No. 64/19 Page 393 of 402 State vs. Arvind Johri. & Ors Judgment dt.18.10.2022
540. Such agreements are designated as criminal conspiracy and if such an agreement is entered to commit an offence (any act or omission made punishable by any law for the time being in force), then that such agreement is also an independent offence.
541. In Kehar Singh v. State (Delhi Administration) AIR 1988 SC 1883 (known as Indira Gandhi murder case) it was held:
"...Generally, a conspiracy is hatched in secrecy and it may be difficult to adduce direct evidence of the same. The prosecution often relies on evidence of acts of various parties to infer that they were done in reference to their common intention. The prosecution will also more often rely upon circumstantial evidence. The conspiracy can undoubtedly be proved by such evidence direct or circumstantial. But the Court must enquire whether the two persons are independently pursuing the same end or they have come together in the pursuit of the unlawful object. The former does not render them conspirators, but the latter does. It is, however, essential that the offence of conspiracy requires some kind of physical manifestation of agreement. The express agreement, however, need not be proved. Nor actual meeting of two persons is necessary. Nor it is necessary to prove the actual words of communication. The evidence as to transmission of thoughts sharing the unlawful design may be sufficient.
CC No. 06/12 & ID No. 64/19 Page 394 of 402
State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 It is unnecessary to prove that the parties "actually came together and agreed in terms" to pursue the unlawful object; their need never have been an express verbal agreement, it being sufficient that there was a "tacit understanding between the conspirators as to what should be done..."
542. In the case of State of Maharashtra & ors v. Somnath Thapa & Ors. (1996) 4 SCC 659, the Supreme Court observed that for a person to conspire with another, he must have knowledge of what the conspirators wanted to achieve and thereafter having the intend to further the illegal act takes recourse to a course of conduct to achieve end or facilitate its accomplishment.
543. In Yogesh @ Sachin Jagdish Joshi v. State of Maharashtra (2008) 10 SCC 394, it was held :
"... Thus, it is manifest that the meeting of minds of two or more persons for doing an illegal act or an act by illegal means is sine qua non of the criminal conspiracy but it may not be possible to prove the agreement between them by direct proof. Nevertheless, existence of the conspiracy and its objective can be inferred from the surrounding circumstances and the conduct of the accused. But the incriminating circumstances must form a chain of events from which a conclusion about the guilt of the accused could be drawn. It CC No. 06/12 & ID No. 64/19 Page 395 of 402 State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 is well settled that an offence of conspiracy is a substantive offence and renders the mere agreement to commit an offence punishable, even if an offence does not take place pursuant to the illegal agreement. (emphasis supplied)..."
544. In the case of Baliya v. State of MP (2012) 9 SCC 696, it was held:
"15..........The foundation of the offence of criminal conspiracy is an agreement between two or more persons to cooperate for the accomplishment/ performance of an illegal act or an act which is not illegal by itself, through illegal means. Such agreement or meeting of minds create the offence of criminal conspiracy and regardless of proof or otherwise of the main offence to commit which the conspiracy may have been hatched once the unlawful combination of minds is complete, the offence of criminal conspiracy stands committed....
17. The offence of criminal conspiracy has its foundation in an agreement to commit an offence or to achieve a lawful object through unlawful means. Such a conspiracy would rarely be hatched in the open and, therefore, direct evidence to establish the same may not be always forthcoming. Proof or otherwise of such conspiracy is a matter of inference and the court in drawing such an inference must consider whether the basic facts i.e. circumstances from which the inference is to be drawn have been proved beyond all reasonable doubt, and thereafter, whether from CC No. 06/12 & ID No. 64/19 Page 396 of 402 State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 such proved and established circumstances no other conclusion except that the accused had agreed to commit an offence can be drawn. Naturally, in evaluating the proved circumstances for the purposes of drawing any inference adverse to the accused, the benefit of any doubt that may creep in must go to the accused."
545. In the case of CBI v. K. Narayana Rao (2012)9 Scale 25), it was held: "24. The ingredients of the offence of criminal conspiracy are that there should be an agreement between the persons who are alleged to conspire and the said agreement should be for doing of an illegal act or for doing, by illegal means, an act which by itself may not be illegal. In other words, the essence of criminal conspiracy is an agreement to do an illegal act and such an agreement can be proved either by direct evidence or by circumstantial evidence or by both and in the matter of common experience that direct evidence to prove conspiracy is rarely available. Accordingly, the circumstances proved before and after the occurrence have to be considered to decide about the complicity of the accused. Even if some acts are proved to have been committed, it must be clear that they were so committed in pursuance of an agreement made between the accused persons who were parties to the alleged conspiracy. Inferences from such proved circumstances regarding the guilt may be drawn only when CC No. 06/12 & ID No. 64/19 Page 397 of 402 State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 such circumstances are incapable of any other reasonable explanation. In other words, an offence of conspiracy cannot be deemed to have been established on mere suspicion and surmises or inference which are not supported by cogent and acceptable evidence."
546. From the proposition of law laid down in the aforesaid judgments, it comes out that in order to prove the conspiracy, prosecution is not required to prove the agreement and to adduce direct evidence of conspiracy that the parties came together and agreed to pursue the unlawful object. It is not necessary to prove that there was an express verbal agreement but what is necessary to show is that there was some sort of tacit understanding between the conspirators as to what should be done.
547. Keeping the aforesaid principles in mind it has got to be seen if all accused persons or two or more of them were in criminal conspiracy to commit the offense involved in the present case.
548. As prosecution has not been able to prove its case against A8 K.B. Relan and A10 Anil Aggarwal, they cannot be said to be part of criminal conspiracy. Accordingly, now role of other surviving accused persons i.e. A2 Mahan Mukherjee & A3 Rajendra S. Raikwar in criminal conspiracy is to be CC No. 06/12 & ID No. 64/19 Page 398 of 402 State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 seen.
549. It has come on record that A2 Mahan Mukherjee and A3 Rajendra S. Raikwar opened a current account in PNB, NRB, New Delhi and thereafter they availed the loan of Rs 20 lakhs for expansion of their business of export of rice which was enhanced from time to time to the tune of Rs. 3.36 crores. The loan facilities were secured by primary securities i.e. stocks of rice as well as collateral securities by mortgage of four immovable properties. In fact, from the very inception it had been in the mind of A2 and A3 to open the account in the name of firm to avail various credit facilities in the garb of expansion of their business and their actual intention was to siphon off the money and to cheat the public bank holding public funds and they have also succeeded in their design. The mortgaged properties were found to be forged. Even the guarantors were the fake persons and turned out to be impersonators. The funds of the firm were siphoned off in a very calculative manner through the accounts opened in the name of fake firms of their employee PW7 Raja Ram Sharma.
550. All the above shows that both A2 Mahan Mukherjee and A3 Rajendra S Raikwar were performing these acts and deeds with the connivance and planning of each other and without it, the existence of these documents could not have happened.
CC No. 06/12 & ID No. 64/19 Page 399 of 402
State vs. Arvind Johri. & Ors Judgment dt.18.10.2022
551. The element of conspiracy between A2 and A3 was also existing and it stands proved. However, they will not derive any benefit from the fact that charge under Section 120B IPC was for all accused persons and not exclusively for these two accused persons (A2 and A3) because firstly, the findings being returned are not in respect of A1 Arvind Johri, A5 Anil Kumar Mahajan, A6 Margrate Anthony, A7 Seema Nagpal, A9 R.L. Jain & A11 Surender Kapoor since they have expired and proceedings qua them stood abated. Secondly, in terms of spirit of Section 221 (2) of Cr.P.C (when one of offence is proved in series of acts but offence was not charged) there is no bar to give such findings in respect of two accused persons on the basis of evidence on record particularly when formal charge u/s 120B IPC was framed against both the accused too.
552. Thus, their showing of ignorance or plea in statements under Section 313 Cr.P.C do not dilute the allegations against them. In fact, in this way an attempt is being made to show that they had no meeting of mind but footprints of record is exposing that the same was also a strategy of their minds.
553. Hence, both A2 Mahan Mukherjee and A3 Rajendra S. Raikwar were very much in criminal conspiracy with each other to cheat the bank by inducing it to sanction various cash credit and other facilities on the basis of CC No. 06/12 & ID No. 64/19 Page 400 of 402 State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 forged documents and by siphoning off the funds of the firm and thereby causing a wrongful loss to the bank and corresponding wrongful gain to themselves.
CONCLUSION
554. As a sequel to my findings qua the accused persons, I hereby conclude as under: (1) A2 Mahan Mukherjee and A3 Rajendra S. Raikwar are held guilty and convicted for the offence punishable under Section 120B read with Sections 420 & 471 IPC. They both are also convicted for the substantive offences punishable under Section 420 & 471 IPC. (2) A8 K.B. Relan is acquitted of the offence punishable under Section 120 B IPC read with Section 13 (1) (d), read with Section 13 (2) of the Prevention of Corruption Act, 1988 read with Sections 167, 419, 420, 467, 468 and 471 IPC. He also stands acquitted of the offences punishable under Section 167 IPC and under Section 13 (2) read with Section 13 (1) (d) of the PC Act, 1988.
(3) A10 Anil Aggarwal stands acquitted of the offence punishable under Section 120 B IPC read with Section 13 (1) (d), read with Section 13 (2) of the Prevention of Corruption Act, 1988 read with CC No. 06/12 & ID No. 64/19 Page 401 of 402 State vs. Arvind Johri. & Ors Judgment dt.18.10.2022 Sections 167, 419, 420, 467, 468 and 471 IPC. He also stands acquitted of the offence punishable under Section 13 (2) read with Section 13 (1) (d) of the PC Act, 1988.
Announced in the open Court on 18th October, 2022 (Balwant Rai Bansal) Special Judge (PC Act), CBI17, Rouse Avenue Courts, New Delhi CC No. 06/12 & ID No. 64/19 Page 402 of 402 State vs. Arvind Johri. & Ors Judgment dt.18.10.2022